Case Note & Summary
The dispute arose between two real brothers, Vishwanath (appellant/plaintiff) and Pandurang (respondent/defendant), over ancestral agricultural land bearing survey nos. 56 and 57, total area 5.83 HR, situated at village Hiwara, Tahsil Sevagram, District Wardha. The brothers had executed a registered Partition Deed (exhibit 51) dividing the land by an east-west boundary, with the southern half (2.92 HR) allotted to Vishwanath and the northern half (2.91 HR) to Pandurang. Vishwanath filed Regular Civil Suit No. 261 of 2000 seeking a permanent injunction to restrain Pandurang from disturbing his cultivating possession over the southern portion. Pandurang denied the allegations. The trial court (Civil Judge, Junior Division, Wardha) dismissed the suit on 21st June 2004, holding that Vishwanath failed to prove that the fields were treated as one and divided equally, and that he was in possession of the southern half after partition. The first appellate court (Adhoc District Judge-2, Wardha) dismissed Regular Civil Appeal No. 83 of 2004 on 11th October 2011, affirming the trial court's findings. Vishwanath then filed the present second appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court of Bombay at Nagpur, in its oral judgment dated 11th April 2014, dismissed the appeal, holding that no substantial question of law arose. The court noted that the concurrent findings of fact by the lower courts were based on evidence and were not perverse. The appellant failed to prove his possession over the suit land, and thus the injunction was rightly denied.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court held that findings of fact by lower courts cannot be interfered with in second appeal unless perverse or based on no evidence. The appellant failed to show any substantial question of law. (Paras 1-5) B) Property Law - Partition - Possession - Burden of Proof - The plaintiff must prove his possession over the allotted portion to seek injunction. The trial court and first appellate court concurrently found that the plaintiff failed to prove possession after partition. (Paras 2-4) C) Evidence Act - Appreciation of Evidence - Oral and Documentary Evidence - The courts below disbelieved the plaintiff's evidence and found the partition deed (exhibit 51) did not establish actual possession. The High Court upheld these findings as not perverse. (Paras 3-4)
Issue of Consideration
Whether the appellant-plaintiff proved his possession over the southern half of the suit land after partition and whether the respondent-defendant disturbed his possession, entitling him to a permanent injunction.
Final Decision
The High Court dismissed the second appeal, upholding the concurrent findings of the lower courts that the plaintiff failed to prove his possession and entitlement to injunction.
Law Points
- Burden of proof
- Possession
- Injunction
- Partition deed
- Appreciation of evidence
