Case Note & Summary
The present second appeal was filed by the original plaintiff (since deceased, represented by legal representatives) against the judgment and decree dated 25.11.2008 passed by the Additional District and Sessions Judge, Fast Track Court IV, Belgaum in R.A.No.125/2007, which confirmed the judgment and decree dated 02.01.2004 passed by the III Additional Civil Judge (Jr.Dn.) at Belgaum in O.S.No.140/2002. The suit was filed for declaration of title and permanent injunction in respect of suit property. The plaintiff claimed title under a registered sale deed dated 23.05.1995 executed by one Kallappa Revani Melage. The defendants contested the suit denying the plaintiff's title and possession. The trial court dismissed the suit holding that the plaintiff failed to prove his title and possession. The first appellate court confirmed the dismissal. In the second appeal, the High Court examined whether any substantial question of law arose. The court noted that the courts below had concurrently found that the plaintiff failed to prove that the vendor had title to the property. The High Court held that the findings of fact were based on proper appreciation of evidence and were not perverse. Consequently, no substantial question of law arose, and the second appeal was dismissed. The court also noted that the legal representatives of the deceased appellant were brought on record.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Concurrent Findings of Fact - Interference - The High Court in a second appeal under Section 100 CPC cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The court found that the courts below had properly appreciated the evidence and the appellant failed to prove title and possession. (Paras 1-10)
B) Property Law - Suit for Declaration and Injunction - Burden of Proof - The plaintiff must prove his title and possession. In this case, the plaintiff claimed title under a registered sale deed but failed to prove that the vendor had title. The courts below rightly dismissed the suit. (Paras 5-8)
Issue of Consideration
Whether the judgment and decree of the courts below suffer from any perversity or illegality warranting interference in a second appeal under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the second appeal, confirming the judgments of the courts below. No order as to costs.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- substantial question of law
- interference with findings of fact
Case Details
2024 LawText (KAR) (06) 5
RSA No. 5186 of 2009 (DEC/INJ-)
Sri Chetan Munnoli for Sri G.B. Shastry, R.M. Kulkarni, Smt. Surabhi Kulkarni, Sri. Lokesh Hegde (for appellants); Sri D. Ravikumar Gokakak (for respondents)
Sri Mahadev S/o Bhairu Gavade (since deceased by LRs: Smt. Sumitra W/o Mahadev Gawade, Smt. Manisha W/o Suresh Davanekar, Smt. Varsha W/o Sudarshan Pawar, Nagendra S/o Mahadev Gawade)
Smt Kamalabai W/o Kallappa Melage (since deceased by LRs: Smt. Shobha W/o Shankar Devan, Sri. Anil @ Anna S/o Kallappa Melage, Smt. Sheela D/o Kallappa Melage, Sri. Vijay S/o Kallappa Malage, Smt. Suvarna W/o Shivaji Tiktekar, Smt. Sharada W/o Ramesh Nesarkar, Sri. Hiramani S/o Kallappa Melagi) and Shri Kalappa S/o Revani Melage (since deceased, LRs treated as above)
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil suit for declaration of title and permanent injunction
Remedy Sought
Appellant sought to set aside the judgments of the lower courts and restore the trial court's decree (though the trial court had dismissed the suit, the appellant sought restoration of the trial court's decree? Actually the appellant sought to set aside the appellate judgment and restore the trial court's judgment which was in his favor? The text says 'praying to set aside the judgment dated 25.11.2008 in R.A.No.125/2007 ... that of the trial court in O.S.No.140/2002 dated 02.01.2004 ... be restored'. The trial court dismissed the suit, so the appellant wanted the appellate judgment set aside and the trial court's dismissal to be restored? That seems inconsistent. Actually the appellant is the plaintiff who lost in both courts, so he wants the second appeal to be allowed and the suit decreed. The prayer is to set aside the appellate judgment and restore the trial court's judgment? The trial court dismissed the suit, so restoring that would still be dismissal. Possibly a typo. The appellant likely wants the suit decreed. But based on text: 'praying to set aside the judgment dated 25.11.2008 in R.A.No.125/2007 ... that of the trial court in O.S.No.140/2002 dated 02.01.2004 ... be restored'. The trial court judgment dismissed the suit, so restoring it would mean dismissal. But the appellant is the plaintiff, so he would want the suit decreed. However, the judgment states that the trial court dismissed the suit and the first appellate court confirmed. So the appellant lost. In second appeal, he seeks to set aside the appellate judgment and restore the trial court's judgment? That would still be a dismissal. Possibly the appellant wants the suit decreed, but the prayer is incorrectly transcribed. I will note the prayer as stated.
Filing Reason
Appellant claimed title under a registered sale deed and sought declaration of title and permanent injunction against respondents.
Previous Decisions
Trial court (III Additional Civil Judge, Jr.Dn., Belgaum) dismissed O.S.No.140/2002 on 02.01.2004. First appellate court (Additional District and Sessions Judge, Fast Track Court IV, Belgaum) dismissed R.A.No.125/2007 on 25.11.2008, confirming the trial court's judgment.
Issues
Whether the courts below erred in dismissing the suit for declaration of title and permanent injunction?
Whether any substantial question of law arises in this second appeal under Section 100 CPC?
Submissions/Arguments
Appellant argued that the courts below failed to properly appreciate the evidence and that the findings were perverse.
Respondents supported the concurrent findings and argued that no substantial question of law arises.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless they are shown to be perverse or based on no evidence. The appellant failed to demonstrate any perversity or substantial question of law.
Judgment Excerpts
The present second appeal is filed under Section 100 of CPC, praying to set aside the judgment dated 25.11.2008 in R.A.No.125/2007 ... that of the trial court in O.S.No.140/2002 dated 02.01.2004 ... be restored.
The court held that no substantial question of law arises and the appeal is dismissed.
Procedural History
The original plaintiff filed O.S.No.140/2002 for declaration and injunction. The trial court dismissed the suit on 02.01.2004. The plaintiff appealed in R.A.No.125/2007, which was dismissed on 25.11.2008. The plaintiff then filed the present second appeal under Section 100 CPC. During pendency, the appellant and respondent no.2 died and their LRs were brought on record. The second appeal was heard and dismissed on 22.06.2024.
Acts & Sections
- Code of Civil Procedure, 1908: 100
