Case Note & Summary
The present Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) arises from a suit for declaration and injunction filed by the original plaintiff (since deceased, represented by legal representatives) against the defendants. The plaintiff claimed title and possession over the suit property and sought a permanent injunction restraining the defendants from interfering with his possession. The trial court, after considering the evidence, dismissed the suit holding that the plaintiff failed to prove his title and possession. The first appellate court, in Regular Appeal No. 70/2005, confirmed the trial court's findings and dismissed the appeal. Aggrieved, the plaintiff's legal representatives filed the present second appeal. The High Court, after hearing the counsel for the appellants and perusing the records, noted that the appeal was filed under Section 100 CPC, which permits interference only on substantial questions of law. The court observed that both the trial court and the first appellate court had concurrently found that the plaintiff had not produced sufficient evidence to establish his title or possession over the suit property. The High Court found no perversity or error of law in the concurrent findings. The court held that the plaintiff had failed to discharge the burden of proof under Section 101 of the Indian Evidence Act, 1872. Consequently, no substantial question of law arose for consideration. The appeal was dismissed, and the judgments of the lower courts were upheld.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court in a second appeal can only interfere if there is a substantial question of law. Concurrent findings of fact by the trial court and first appellate court cannot be re-appreciated unless shown to be perverse or based on no evidence. (Paras 1-10) B) Property Law - Suit for Declaration and Injunction - Burden of Proof - The plaintiff must prove his title and possession. Where the plaintiff fails to produce cogent evidence of title and possession, the suit is liable to be dismissed. (Paras 5-8) C) Evidence Act - Onus of Proof - Section 101 - The burden of proof lies on the party who asserts the affirmative. In a suit for declaration of title, the plaintiff must discharge the initial burden of proving his title. (Paras 5-8)
Issue of Consideration
Whether the judgment and decree of the lower appellate court confirming the trial court's dismissal of the suit for declaration and injunction suffers from any substantial question of law warranting interference under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the Regular Second Appeal, confirming the judgments of the trial court and the first appellate court. No substantial question of law was found to exist.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- no substantial question of law
- interference limited to perversity or error of law
- burden of proof on plaintiff to prove title and possession
