Case Note & Summary
The appellant, original defendant No.2, Smt. Manda Purushottam Zatte, filed a second appeal against the judgment and decree of the District Court, Yavatmal, which confirmed the decree of the trial court granting permanent injunction in favour of the respondent No.1, original plaintiff, Chandrakumar Parasmalji Chordiya. The plaintiff had filed Regular Civil Suit No.93 of 1995 seeking a permanent injunction restraining the defendants from interfering with his possession over the suit property, Survey No.16/3, Gat No.54, area 2 Hectares 57 Ares, situated at village Nilapur, Tq. Wani, Distt. Yavatmal. The plaintiff claimed that the defendant No.1, Purushottam Wasudeo Zatte, agreed to sell the suit property to him for Rs.60,000/- on 29-1-1994 by executing an Isarchitthi (earnest note) and received an earnest amount of Rs.45,000/-. The balance amount of Rs.15,000/- was paid on 11-11-1994, and a registered sale deed was executed on 14-11-1994. The plaintiff alleged that possession was delivered to him on the date of the Isarchitthi, i.e., 29-1-1994, and he was in continuous cultivating possession. The defendant No.2, the appellant, who is the wife of defendant No.1, contested the suit, denying the plaintiff's possession and claiming that she and her husband were in possession. The trial court decreed the suit, and the first appellate court confirmed the decree. In the second appeal, the High Court framed a substantial question of law as to whether the concurrent findings were perverse. The High Court examined the evidence, particularly the recitals in the Isarchitthi and the sale deed, which stated that possession was not delivered to the plaintiff. The court also noted that the plaintiff's witnesses admitted in cross-examination that the plaintiff was not in possession. The High Court held that the courts below had ignored material evidence and erroneously placed the burden on the defendant to prove dispossession. Consequently, the High Court allowed the appeal, set aside the judgments of the courts below, and dismissed the suit.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The High Court can interfere with concurrent findings of fact if they are perverse or based on non-consideration of material evidence. In the present case, the courts below failed to consider the recitals in the Isarchitthi and the sale deed regarding delivery of possession, and the evidence of the plaintiff's witnesses, leading to perversity. (Paras 1-10) B) Property Law - Permanent Injunction - Possession - Burden of Proof - Specific Relief Act, 1963, Section 38 - In a suit for permanent injunction based on possession, the plaintiff must prove his possession on the date of suit. The courts below erroneously placed the burden on the defendant to prove dispossession, contrary to the settled principle that the plaintiff must prove his own case. (Paras 11-15) C) Evidence - Appreciation of Evidence - Oral and Documentary Evidence - Indian Evidence Act, 1872 - The courts below ignored the recitals in the Isarchitthi and the registered sale deed which stated that possession was not delivered to the plaintiff. The oral evidence of the plaintiff's witnesses was also not properly appreciated. The High Court held that such non-consideration of material evidence renders the findings perverse. (Paras 16-20)
Issue of Consideration
Whether the concurrent findings of the courts below granting permanent injunction in favour of the plaintiff are perverse and based on non-consideration of material evidence, thereby giving rise to a substantial question of law under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the second appeal, set aside the judgments and decrees of the trial court and the first appellate court, and dismissed the suit of the plaintiff with no order as to costs.
Law Points
- Permanent injunction
- possession
- sale deed
- Isarchitthi
- perversity
- substantial question of law
- Section 100 CPC
- burden of proof
- oral evidence
- documentary evidence
