Case Note & Summary
The case involves a second appeal filed by the original plaintiffs (appellants) against the judgment of the Principal District Judge, Ratnagiri, dismissing their Regular Civil Appeal No.39 of 2009. The appellants had filed a suit for perpetual injunction or, in the alternative, for possession of part of the suit property bearing Gat No.1026 admeasuring 1-H 52-R known as 'Bhokar' situated at village Khanu, Taluka and District Ratnagiri. The suit property was purchased by Tanu Babu Shivgan, husband of plaintiff no.1 and father of plaintiff no.2 and defendant nos.2 to 5. The dispute pertains to 33 acres out of the suit property. The trial court partly decreed the suit in favor of the plaintiffs but rejected the relief for possession, holding that the suit was barred by limitation as the defendant had been in continuous possession for more than 12 years. The first appellate court confirmed this finding. The High Court formulated a substantial question of law on 30th August 2016 and heard the appeal. The appellants argued that the courts below erred in holding the suit barred by limitation and that the defendant had not proved adverse possession. The respondent contended that the findings were concurrent and based on evidence. The High Court held that no substantial question of law arose as the findings of fact were not perverse and the second appeal under Section 100 CPC does not permit reappreciation of evidence. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The court considered whether the second appeal involved any substantial question of law. The appellants (original plaintiffs) sought to challenge concurrent findings of fact regarding possession and limitation. The High Court held that the second appeal does not give a right of appeal on facts and that the findings of fact recorded by the courts below were based on evidence and not perverse. The appeal was dismissed as no substantial question of law arose. (Paras 1-13) B) Limitation - Suit for Possession - Adverse Possession - Articles 64 and 65 of the Limitation Act, 1963 - The plaintiffs' suit for possession was held to be barred by limitation as the defendant had been in continuous possession for more than 12 years prior to the suit. The courts below found that the plaintiffs failed to prove possession within 12 years of the suit. The High Court upheld this finding. (Paras 4-12) C) Evidence - Appreciation of Evidence - Concurrent Findings - The trial court and first appellate court concurrently held that the plaintiffs failed to prove their possession and that the defendant had perfected title by adverse possession. The High Court declined to reappreciate evidence in second appeal. (Paras 5-12)
Issue of Consideration
Whether the second appeal under Section 100 of the Code of Civil Procedure, 1908, raises any substantial question of law warranting interference with the concurrent findings of fact recorded by the courts below.
Final Decision
The second appeal is dismissed. The impugned order and judgment dated 17th November, 2014 passed by the learned Principal District Judge, Ratnagiri in Regular Civil Appeal No.39 of 2009 is confirmed. No order as to costs. Civil Application No.1006 of 2015 is disposed of accordingly.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- concurrent findings of fact
- reappreciation of evidence
- limitation for filing suit
- adverse possession
- permanent injunction
- possession
