Case Note & Summary
The case pertains to a Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 20.07.2005 passed by the Civil Judge (Sr. Dn.), Chikodi, in R.A. No. 113/1996. The first appellate court had allowed the appeal and set aside the judgment and decree dated 13.06.1996 passed by the trial court in O.S. No. 606/1989 (old No. 122/1982). The appellants were the original plaintiffs who had filed a suit for declaration of title and permanent injunction in respect of the suit property. The trial court had decreed the suit, but the first appellate court reversed that decision and dismissed the suit. The appellants challenged this reversal in the second appeal. The High Court, after hearing the parties, framed a substantial question of law as to whether the judgment of the first appellate court calls for interference. The court noted that the first appellate court had re-appreciated the evidence and found that the plaintiffs had failed to prove their title and possession over the suit property. The High Court observed that the findings of the first appellate court were based on proper appreciation of evidence and were not perverse. It held that in a second appeal, the High Court cannot interfere with concurrent findings of fact unless there is a substantial question of law. Since the appellants failed to demonstrate any perversity or error of law, the appeal was dismissed. The court also noted that the first appellate court had correctly placed the burden of proof on the plaintiffs and that they had not discharged it. The judgment of the first appellate court was affirmed, and the second appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The court held that in a second appeal, the High Court can only interfere if there is a substantial question of law. Concurrent findings of fact cannot be disturbed unless perverse or based on no evidence. The first appellate court's re-appreciation of evidence and reversal of trial court's findings was based on proper appreciation of evidence and did not give rise to any substantial question of law. (Paras 1-10) B) Property Law - Declaration of Title and Possession - Burden of Proof - The plaintiffs failed to prove their title and possession over the suit property. The first appellate court correctly held that the plaintiffs did not establish their case. The High Court affirmed that the burden lies on the plaintiff to prove title and possession, and the plaintiffs failed to discharge that burden. (Paras 5-9) C) Evidence Act - Appreciation of Evidence - Reversal of Findings - The first appellate court, being the final court of fact, re-appreciated the evidence and reversed the trial court's findings. The High Court held that such reversal, if based on proper appreciation, does not warrant interference in second appeal. (Paras 6-8)
Issue of Consideration
Whether the judgment and decree of the first appellate court reversing the trial court's decree calls for interference in a second appeal under Section 100 of the Code of Civil Procedure, 1908?
Final Decision
The High Court dismissed the Regular Second Appeal, affirming the judgment and decree of the first appellate court. No order as to costs.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- no substantial question of law
- interference with findings of fact not permissible
- burden of proof on plaintiff to prove title and possession
