Case Note & Summary
The present Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) was filed by the appellants (legal representatives of the original plaintiff) against the judgment and decree dated 23.10.2009 passed in R.A.No.116/2006 by the Principal District Judge, Bijapur, which dismissed the appeal and confirmed the judgment and decree dated 09.11.2006 passed in O.S.No.346/2002 by the I Addl. Civil Judge (Sr.Dn.), Bijapur, dismissing the suit. The original plaintiff, Channappa (since deceased and represented by his LRs), had filed a suit for declaration of title and permanent injunction in respect of the suit property. The trial court, after considering the evidence, dismissed the suit holding that the plaintiff failed to prove his title and possession over the suit property. Aggrieved, the plaintiff filed an appeal before the first appellate court, which concurred with the findings of the trial court and dismissed the appeal. The appellants then filed the present second appeal. The High Court, after hearing the learned counsel for the appellants and the respondent, framed the following substantial question of law: "Whether the judgment and decree of the lower appellate court suffers from any perversity or illegality warranting interference under Section 100 of CPC?" The Court noted that the findings of fact recorded by both the courts below were concurrent and based on proper appreciation of evidence. The appellants could not point out any perversity or illegality in the impugned judgment. The Court held that in a regular second appeal, the High Court cannot re-appreciate evidence unless the findings are perverse or based on no evidence. Since no substantial question of law arose, the appeal was dismissed. Consequently, the cross-objection (RSA CROB No.101/2010) filed by the respondent was also dismissed as infructuous.
Headnote
A) Civil Procedure - Regular Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court in a regular second appeal under Section 100 CPC 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 1-4) B) Property Law - Suit for Declaration and Injunction - Burden of Proof - The plaintiff must prove title and possession. In the instant case, the plaintiff failed to establish her title over the suit property and her possession, leading to dismissal of the suit. (Paras 2-4)
Issue of Consideration
Whether the judgment and decree of the lower appellate court dismissing the appeal and confirming the trial court's dismissal of the suit for declaration and injunction suffers from any perversity or illegality warranting interference under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The Regular Second Appeal is dismissed. The cross-objection (RSA CROB No.101/2010) is also dismissed as infructuous. No order as to costs.
Law Points
- Concurrent findings of fact
- Section 100 CPC
- Substantial question of law
- Interference with findings of fact
- Regular second appeal
