Case Note & Summary
The plaintiff, Uttamrao Hanumant Deshmukh, filed a suit seeking a permanent injunction restraining the defendants from obstructing the construction of a boundary wall on his property and for removal of wooden stumps erected by defendant No.1. The trial court decreed the suit, but the lower appellate court allowed the defendants' appeal and dismissed the suit. The plaintiff then filed a second appeal in the High Court. The High Court admitted the appeal on a substantial question of law concerning whether the lower appellate court could allow a new ground not raised in the memo of appeal without leave. However, upon examining the record, the High Court found that the plaintiff had failed to establish the boundaries of his house and that the map relied upon did not show the boundaries. The plaintiff also did not challenge the conditional permission granted by the Gram Panchayat. Consequently, the High Court held that the lower appellate court's finding that the plaintiff failed to prove encroachment was based on evidence and did not warrant interference. The second appeal was dismissed.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100, Code of Civil Procedure, 1908 - The appeal was admitted on a specific question regarding whether the lower appellate court could allow a new ground not raised in the memo of appeal without leave. However, the High Court found that the plaintiff failed to establish title and encroachment, and thus the appeal was dismissed on merits without deciding the procedural question. (Paras 2-4)
Issue of Consideration
Whether the lower appellate court was right in allowing the appellant to urge a ground not raised in the memo of appeal without seeking leave of the court.
Final Decision
The second appeal is dismissed. The judgment and decree dated 11.07.2002 passed by the lower appellate court in Regular Civil Appeal No. 114 of 1995 is confirmed.
Law Points
- Second appeal
- substantial question of law
- ground not raised in memo of appeal
- leave of court
- Code of Civil Procedure
- 1908
- Section 100
Case Details
2016 LawText (BOM) (07) 144
Second Appeal No. 512 of 2002
Shri A.J.Gilda for appellant, Smt. S.W.Deshpande for Respondents
Uttamrao Hanumant Deshmukh
Dattatray Ganpatrao Wankhede, Vijay Narayanrao Muley, Gram Panchayat, Nerpingali
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Nature of Litigation
Civil suit for permanent injunction and removal of encroachment.
Remedy Sought
Plaintiff sought permanent injunction restraining defendants from obstructing construction of boundary wall and removal of wooden stumps.
Filing Reason
Plaintiff alleged that defendant No.1 encroached upon his property by fixing pegs for tethering cattle and obstructed construction of boundary wall.
Previous Decisions
Trial court decreed the suit; lower appellate court allowed appeal and dismissed suit.
Issues
Whether the lower appellate court was right in allowing the appellant to urge a ground not raised in the memo of appeal without seeking leave.
Whether the plaintiff established title and encroachment over the suit property.
Submissions/Arguments
Appellant argued that the lower appellate court erred in allowing a new ground not raised in the memo of appeal without leave.
Respondents supported the lower appellate court's finding that plaintiff failed to prove encroachment.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court can interfere only if there is a substantial question of law. Here, the plaintiff failed to establish boundaries and encroachment, and the lower appellate court's finding was based on evidence, hence no interference warranted.
Judgment Excerpts
I find that the plaintiff has failed to establish the boundaries of house No. 205 (old) which corresponds to new house No. 1555 in Ward No. 7 at Nerpinglai.
From the said map, I do not find the boundaries of the house owned by the plaintiff.
Procedural History
Trial court decreed suit in Regular Civil Suit No. 105 of 1993. Defendants appealed in Regular Civil Appeal No. 114 of 1995, which was allowed on 11.07.2002 dismissing the suit. Plaintiff filed Second Appeal No. 512 of 2002, admitted on 21.09.2005 on a substantial question of law, and dismissed on 25.07.2016.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
