Case Note & Summary
The dispute pertains to a suit for partition and separate possession of agricultural lands filed by the original plaintiff (respondent no.1) against the defendants, who are his brothers. The plaintiff claimed that the suit properties were ancestral joint family properties and that he was entitled to a share. The defendant no.2 (appellant) contended that he had acquired exclusive title by adverse possession and that the suit was barred by limitation. The trial court decreed the suit in favor of the plaintiff, holding that the properties were joint family properties and that the defendant no.2 had not proved adverse possession. The first appellate court dismissed the appeal, affirming the trial court's findings. In the second appeal under Section 100 CPC, the High Court examined whether any substantial question of law arose. The court noted that the concurrent findings of fact regarding the nature of the property and the failure to prove adverse possession were based on evidence and were not perverse. The court held that the burden of proving adverse possession was on the defendant, which he failed to discharge. The suit for partition was not barred by limitation as the plaintiff's possession was not ousted. Consequently, the second appeal was dismissed, and the decree of the lower appellate court was confirmed.
Headnote
A) Property Law - Adverse Possession - Burden of Proof - Limitation Act, 1963, Article 65 - The appellant-defendant claimed exclusive title by adverse possession over suit property. The court held that the burden to prove ouster and hostile possession for over 12 years lies on the defendant. The concurrent findings of the courts below that the defendant failed to establish such possession were not perverse and did not warrant interference under Section 100 CPC. (Paras 1-10)
B) Civil Procedure - Second Appeal - Interference with Concurrent Findings - Code of Civil Procedure, 1908, Section 100 - The court reiterated that a second appeal lies only on substantial questions of law. The findings of fact recorded by the lower appellate court, being based on evidence, cannot be re-appreciated in a second appeal unless shown to be perverse. No substantial question of law arose. (Paras 1-10)
Issue of Consideration
Whether the appellant-defendant had perfected title by adverse possession and whether the suit for partition was barred by limitation.
Final Decision
The High Court dismissed the second appeal, confirming the judgment and decree of the lower appellate court. The suit for partition was decreed in favor of the plaintiff.
Law Points
- Adverse possession
- Burden of proof
- Limitation
- Partition
- Concurrent findings
- Section 100 CPC
Case Details
2016 LawText (BOM) (01) 17
Second Appeal No.450 of 1993
Mr.Girish Agarwal for the appellant. Mr.P.N. Joshi a/w Mr.N.M. Pujari a/w Mr.P.B. Rahade for the Respondents.
Eknath Daval Thete (since deceased) through his legal heirs Shri Sampat Eknath Thete
Ganpat Dagdu Thete (since deceased) through his legal heirs Smt.Saraswati Ganpat Thete, Kailas Ganpat Thete, Sou.Ashalata Ashok Kandale and Ranganath Dagdu There
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Nature of Litigation
Second appeal under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree of the IV Additional District Judge, Nashik dismissing the appeal filed by the appellant (original defendant no.2) against the decree of the trial court allowing the suit for partition.
Remedy Sought
The appellant sought to set aside the concurrent judgments of the courts below and dismiss the suit for partition.
Filing Reason
The appellant claimed that he had acquired exclusive title to the suit property by adverse possession and that the suit for partition was barred by limitation.
Previous Decisions
The trial court (Civil Judge, Junior Division, Pimpalgaon-Baswant) decreed the suit on 2nd January 1987. The first appellate court (IV Additional District Judge, Nashik) dismissed the appeal on 26th August 1993.
Issues
Whether the appellant-defendant had perfected title by adverse possession over the suit property?
Whether the suit for partition was barred by limitation under Article 65 of the Limitation Act, 1963?
Submissions/Arguments
The appellant argued that he had been in exclusive possession of the suit property for more than 12 years and had acquired title by adverse possession.
The respondents contended that the property was joint family property and that the appellant had not proved ouster or hostile possession.
Ratio Decidendi
The burden of proving adverse possession is on the person claiming it. The appellant failed to establish that his possession was hostile, open, and continuous for the statutory period of 12 years. The concurrent findings of fact by the courts below were based on evidence and were not perverse, hence no interference under Section 100 CPC was warranted.
Judgment Excerpts
By this Second Appeal filed under Section 100 of the Code of Civil Procedure 1908, the appellant herein (original defendant no.2) has impugned the judgment dated 26th August 1993 passed by the IV Additional District Judge, Nashik dismissing the appeal filed by the appellant against the judgment and decree dated 2nd January 1987 passed by the learned Civil Judge, Junior Division, Pimpalgaon-Baswant, District-Nashik allowing the suit filed by the respondent no.1 herein (original plaintiff).
Procedural History
The original plaintiff filed a suit for partition in the trial court, which was decreed on 2nd January 1987. The defendant no.2 appealed to the IV Additional District Judge, Nashik, who dismissed the appeal on 26th August 1993. The defendant no.2 then filed the present second appeal under Section 100 CPC in the High Court of Bombay, which was dismissed on 6th January 2016.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
- Limitation Act, 1963: Article 65
