Case Note & Summary
The appellant, R. Praveen, filed a Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 16.4.2010 passed by the Additional District and Sessions Judge, Fast Track Court-V, Bangalore Rural District, in R.A. No.48/2008, which confirmed the judgment and decree dated 8.2.2008 passed by the II Additional Civil Judge (Jr. Dn), Bangalore Rural District, in O.S. No.312/1998. The appellant was the plaintiff in the original suit, and the respondents were the defendants. The suit was for permanent injunction restraining the defendants from interfering with the plaintiff's possession over the suit property. The trial court dismissed the suit, holding that the plaintiff failed to prove his possession over the suit property as on the date of suit. The lower appellate court confirmed this finding. In the second appeal, the appellant contended that the courts below erred in not properly appreciating the evidence and that the findings were perverse. The High Court, after hearing the parties, framed a substantial question of law as to whether the judgment and decree of the lower appellate court is perverse and calls for interference. The court examined the evidence and found that the plaintiff had not produced any documentary evidence to show his possession, and the oral evidence of the plaintiff and his witnesses was not credible. The court noted that the defendants had produced documents showing their possession. The High Court held that the concurrent findings of fact were based on evidence and were not perverse. Therefore, the appeal was dismissed, and the judgment and decree of the lower appellate court were confirmed.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - Interference with Concurrent Findings - The High Court in a second appeal under Section 100 CPC can interfere with concurrent findings of fact only if they are perverse or based on no evidence. The court found no perversity in the findings of the courts below that the plaintiff failed to prove possession over the suit property as on the date of suit. (Paras 1-10) B) Property Law - Injunction Suit - Possession - Burden of Proof - In a suit for permanent injunction, the plaintiff must prove his possession over the suit property as on the date of suit. The plaintiff failed to produce any documentary evidence of possession and the oral evidence was not credible. The courts below correctly held that the plaintiff was not in possession and that the defendants were in possession. (Paras 4-10)
Issue of Consideration
Whether the judgment and decree of the lower appellate court confirming the trial court's dismissal of the suit for permanent injunction is perverse and calls for interference in a second appeal under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The Regular Second Appeal is dismissed. The judgment and decree dated 16.4.2010 passed by the Additional District and Sessions Judge, Fast Track Court-V, Bangalore Rural District, in R.A. No.48/2008, confirming the judgment and decree dated 8.2.2008 passed by the II Additional Civil Judge (Jr. Dn), Bangalore Rural District, in O.S. No.312/1998, are confirmed. No order as to costs.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- concurrent findings of fact
- interference limited to perversity
- burden of proof in injunction suit
- possession as on date of suit
