Case Note & Summary
The case involves a second appeal under Section 100 of the Code of Civil Procedure, 1908, filed by the original defendant No. 1, Jaiwanta S/o Kishan Tamkar, challenging the concurrent judgments and decrees of the trial court and the first appellate court. The plaintiff, Namdeo Ramji Temkar (since deceased, represented by legal representatives), had instituted a suit for declaration of ownership and injunction in respect of 7 acres 30 gunthas of land from the eastern side of G.No. 49, total admeasuring 15 acres 21 gunthas, situated at village Mahuli, Taluka Gangapur, District Aurangabad. The plaintiff claimed that he was the owner of the suit land by virtue of adverse possession and prior possession, having cultivated it for more than 12 years. The defendant denied the plaintiff's title and claimed that the suit land was part of his own land. The trial court decreed the suit, holding that the plaintiff had proved his possession and that the defendant failed to prove his title. The first appellate court confirmed the decree. In the second appeal, the defendant argued that the courts below erred in law and that the findings were perverse. The High Court, after hearing counsel, framed a substantial question of law regarding whether the courts below were justified in decreeing the suit. The court examined the evidence, including the plaintiff's documentary evidence of possession and the defendant's failure to produce any title documents. The court held that the concurrent findings of fact were not perverse and that the plaintiff had established his title by adverse possession. The court also noted that the defendant did not prove his own title or that the plaintiff was a trespasser. Consequently, the second appeal was dismissed, and the judgments of the lower courts were upheld.
Headnote
A) Civil Procedure - Second Appeal - Section 100 Code of Civil Procedure, 1908 - Substantial Question of Law - The court considered whether the findings of fact by the lower appellate court were perverse or based on no evidence, and whether a substantial question of law arose. Held that the concurrent findings of fact were not perverse and did not give rise to a substantial question of law, as the plaintiff had established possession and the defendant failed to prove title. (Paras 1-10) B) Property Law - Adverse Possession - Limitation Act, 1963 - Article 65 - The plaintiff claimed ownership by adverse possession, asserting possession for more than 12 years. The court examined whether the plaintiff's possession was adverse to the defendant and whether the defendant's title was extinguished. Held that the plaintiff's long, continuous, and uninterrupted possession for over 12 years, coupled with the defendant's failure to prove his own title, established the plaintiff's title by adverse possession. (Paras 5-9) C) Property Law - Prior Possession - Specific Relief Act, 1963 - Section 6 - The plaintiff also based his claim on prior possession, seeking protection against dispossession without due process. The court noted that the plaintiff was in possession and the defendant did not prove any right to dispossess him. Held that the plaintiff's prior possession was sufficient to maintain the suit for declaration and injunction against the defendant, who was a trespasser. (Paras 5-9)
Issue of Consideration
Whether the courts below were justified in decreeing the suit for declaration of ownership based on adverse possession and prior possession, and whether the second appeal involves any substantial question of law.
Final Decision
The second appeal is dismissed. The judgment and decree dated 21/08/1987 passed by the Civil Judge Junior Division, Gangapur in R.C.S. No. 57/1983 and the judgment and decree dated 31/12/1990 passed by the III Additional District Judge, Aurangabad in R.C.A. No. 294 of 1987 are confirmed. No order as to costs.
Law Points
- Adverse possession
- Section 100 CPC
- substantial question of law
- prior possession
- title by adverse possession
- burden of proof
- limitation
