Case Note & Summary
The case involves a property dispute between the plaintiff-respondents (original plaintiffs) and the defendants-appellants (original defendants) over suit land Hissa No. 2, admeasuring 1 acre and 10 gunthas out of Survey No. 27, situated at village Betegaon, Taluka Palghar, District Thane. The plaintiff filed Regular Civil Suit No. 96 of 1978 seeking a declaration of ownership and possession. The trial court decreed the suit on 31.03.1987, holding that the plaintiff had established ownership and that the defendants failed to prove the execution of an agreement dated 21.05.1973 (Exh. 67) or possession from 1968. The lower appellate court in Civil Appeal No. 179 of 1987 reversed the finding on the agreement, holding that the plaintiff had executed the agreement and delivered possession to the defendants, but upheld the ownership finding. The defendants appealed to the High Court in second appeal. The High Court examined the evidence and found that the lower appellate court's finding on the agreement was perverse because the attesting witness (PW-2) denied his signature and the agreement was not proved as required under Section 68 of the Indian Evidence Act, 1872. The court also noted that the defendants did not challenge the concurrent finding of ownership. Consequently, the High Court set aside the lower appellate court's finding on the agreement and restored the trial court's decree, dismissing the second appeal.
Headnote
A) Civil Procedure - Second Appeal - Interference with Concurrent Findings - The High Court in second appeal can interfere with findings of fact only if they are perverse, i.e., based on no evidence or misreading of evidence. The court found that the lower appellate court's finding on execution of agreement was perverse as it ignored the evidence of the attesting witness who denied execution. (Paras 4-6) B) Contract Law - Execution of Agreement - Proof - The burden of proving execution of an agreement lies on the party relying on it. The attesting witness (PW-2) denied his signature and the agreement was not proved as required under Section 68 of the Indian Evidence Act, 1872. Hence, the finding of execution was not sustainable. (Paras 4-5) C) Property Law - Ownership - Concurrent Findings - The concurrent finding of ownership of the plaintiff over the suit land was not challenged by the defendants and was upheld. The decree for possession was confirmed. (Paras 2, 7)
Issue of Consideration
Whether the lower appellate court's finding that the plaintiff executed an agreement dated 21.05.1973 and delivered possession to the defendants is perverse and liable to be set aside in second appeal.
Final Decision
The second appeal is dismissed. The judgment and decree passed by the lower appellate court is set aside and that of the trial court is restored. No order as to costs.
Law Points
- Concurrent findings of fact
- perversity
- interference in second appeal
- burden of proof
- execution of agreement
- part performance
