Case Note & Summary
The case involves a second appeal filed by the appellants (original defendants) against the judgment and decree of the Lower Appellate Court, which had affirmed the decree of the trial court in Special Civil Suit No. 101/2007. The suit was filed by the respondents (original plaintiffs) seeking a declaration and permanent injunction regarding property bearing survey Nos. 77/4 and 78/9 of village Candolim. The plaintiffs claimed that their parents had filed a partition suit (No. 144/1981) against Joaquim Francis D'Souza and others, which was decreed on the basis of a compromise on 20.09.1990. The appellants, who were abroad, challenged the decree. The trial court decreed the suit, and the Lower Appellate Court dismissed the appeal. The High Court, hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908, found that the findings of the courts below were concurrent and based on proper appreciation of evidence. The court held that no substantial question of law arose for consideration, as the appellants failed to demonstrate any perversity or error of law in the impugned judgment. Consequently, the second appeal was dismissed.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The High Court held that the appeal did not raise any substantial question of law as the findings of the courts below were concurrent and based on appreciation of evidence. The court found no perversity or error of law warranting interference. (Paras 1-5)
Issue of Consideration
Whether the impugned judgment of the Lower Appellate Court gives rise to any substantial question of law as required under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The second appeal is dismissed. The impugned judgment of the Lower Appellate Court is confirmed.
Law Points
- Second appeal
- substantial question of law
- concurrent findings of fact
- interference by High Court
- Section 100 CPC
Case Details
2016 LawText (BOM) (10) 142
Second Appeal No. 24 of 2016
Mr. A. D. Bhobe for the appellants, Mr. V. Menezes for the respondents
Gregory de Souza and Elizabeth B. de Souza
Anthony Gaudience De Souza (since deceased through legal representatives) and others
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Nature of Litigation
Second appeal against concurrent findings in a suit for declaration and permanent injunction regarding partition of property.
Remedy Sought
Appellants sought to challenge the decree passed in Special Civil Suit No. 101/2007 and the dismissal of their appeal by the Lower Appellate Court.
Filing Reason
Appellants contended that the courts below erred in decreeing the suit based on a compromise decree in an earlier partition suit.
Previous Decisions
The trial court decreed the suit in favor of the respondents; the Lower Appellate Court dismissed the appeal filed by the appellants.
Issues
Whether the impugned judgment gives rise to any substantial question of law under Section 100 CPC.
Submissions/Arguments
Appellants argued that the courts below erred in appreciating the evidence and that the compromise decree was not binding on them.
Respondents supported the concurrent findings and argued that no substantial question of law arose.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless there is a substantial question of law or perversity in the findings. The appellants failed to demonstrate any such error.
Judgment Excerpts
The above appeal challenges the judgments passed by the Courts below whereby the suit filed by the respondents came to be decreed and the challenges to such decree by the appellants came to be dismissed by the Lower Appellate Court.
Briefly, it is the case of the appellants that the respondent nos. 1, 2 and 3/original plaintiffs filed a suit for declaration and permanent injunction against the appellants/original defendant nos. 1 and 2 and the respondent nos. 4 to 7/original defendant nos. 3 to 6 being Special Civil Suit No. 101/2007 on the ground that the appellant no.1 and the respondent no.4 are children of Daniel Mario D'Souza and Louisa D'Souza, who expired on 09.01.1985 and 06.05.1990.
Procedural History
The respondents filed Special Civil Suit No. 101/2007 for declaration and permanent injunction. The trial court decreed the suit. The appellants appealed to the Lower Appellate Court, which dismissed the appeal. The appellants then filed the present second appeal under Section 100 CPC.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
