Case Note & Summary
The present second appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) was filed by the original defendant, Tulsiram S/o Laxman Bajad, challenging the concurrent decrees of possession passed by the trial court and the first appellate court in favor of the plaintiff, Sadashiv S/o Uttamppa Wani. The suit property was an open site admeasuring 75 ft. x 25 ft. in Ward No.5, village Kanwad, Tq. Risod, Distt. Washim. The plaintiff claimed that his father had purchased the property under a registered sale deed dated 23rd January 1948. The plaintiff's father permitted his maternal uncle, Mahadeoappa, to occupy the property. After the father's death, the plaintiff became the owner. In 1992, the plaintiff noticed construction on the suit property and filed Regular Civil Suit No.204 of 1991 on 30th April 1990 for possession. The defendant filed a written statement denying the plaintiff's title, claiming that he had purchased the property from Mahadeoappa on 22nd February 1990 for Rs.7,000/-. The defendant alleged that the sale deed in favor of the plaintiff's father was a security for a loan taken by Mahadeoappa, and that Mahadeoappa remained in possession and perfected title by adverse possession. The trial court decreed the suit, holding that the plaintiff proved his title and that the defendant failed to establish adverse possession. The first appellate court confirmed the decree. In the second appeal, the High Court framed a substantial question of law regarding the perversity of the concurrent findings. The court held that the findings were based on evidence, particularly the registered sale deed of 1948, and that the defendant's plea of adverse possession was not proved. The court dismissed the appeal, affirming the concurrent decrees.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The court reiterated that in a second appeal, the High Court can only interfere if there is a substantial question of law. Concurrent findings of fact, unless perverse or based on no evidence, are binding. The appellant failed to demonstrate any such error. (Paras 1, 13) B) Property Law - Adverse Possession - Burden of Proof - The defendant claiming adverse possession must prove hostile possession for the statutory period. Mere long possession without animus possidendi does not constitute adverse possession. The defendant's plea was not established. (Paras 10-12) C) Evidence Act - Title - Registered Sale Deed - Section 91 - The plaintiff's title was based on a registered sale deed of 1948. The defendant's oral assertion of a benami transaction was not supported by evidence. The registered document prevails. (Paras 5-6)
Issue of Consideration
Whether the concurrent findings of fact recorded by the trial court and the first appellate court are perverse or based on no evidence, warranting interference under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the second appeal, affirming the concurrent decrees of possession in favor of the plaintiff. No substantial question of law arose for consideration.
Law Points
- Second appeal under Section 100 CPC limited to substantial questions of law
- concurrent findings of fact not interfered with unless perverse
- burden of proof on defendant to establish adverse possession
- title based on registered sale deed prevails over oral assertions.
