Case Note & Summary
The appellant, Sri Shivashankar, filed a Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 17.01.2008 passed in RA No.212/2003 by the I/C Presiding Officer, Fast Track Court-III/Principal District Judge, Bangalore Rural District, Bangalore. The first appellate court had allowed the appeal filed by the respondents against the judgment and decree dated 01.08.2003 passed in OS No.725/1995 by the Principal II Civil Judge (Jr.Dn), Bangalore Rural District, Bangalore. The appellant had originally filed the suit for declaration of title and permanent injunction in respect of suit property. The trial court had decreed the suit in favor of the appellant. The respondents, being the defendants, appealed to the first appellate court, which reversed the trial court's judgment and dismissed the suit. Aggrieved, the appellant filed the present second appeal. The High Court, after hearing the parties, framed the following substantial question of law: 'Whether the judgment and decree of the first appellate court suffers from any substantial question of law?' The court noted that the first appellate court, being the final court of fact, had re-appreciated the evidence and recorded findings that the plaintiff had not proved his title over the suit property. The High Court observed that the appellant failed to demonstrate any perversity or error of law in the impugned judgment. The court held that concurrent findings of fact cannot be interfered with in a second appeal unless they are perverse or based on no evidence. Since the appellant could not show any substantial question of law, the second appeal was dismissed. The court confirmed the judgment and decree of the first appellate court, thereby dismissing the suit for declaration and injunction.
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 perverse or based on no evidence. Held that the appellant failed to demonstrate any perversity or error of law in the impugned judgment (Paras 1-10). B) Property Law - Suit for Declaration and Injunction - Burden of Proof - Plaintiff must prove title and possession. In a suit for declaration of title and injunction, the plaintiff has to stand on his own strength and prove his title and possession. Held that the plaintiff failed to prove his title over the suit property (Paras 5-8). C) Evidence - Appreciation of Evidence - Concurrent Findings - The first appellate court, being the final court of fact, had re-appreciated the evidence and recorded findings that the plaintiff did not prove his title. The High Court in second appeal cannot re-appreciate evidence unless the findings are perverse. Held that no substantial question of law arises (Paras 9-10).
Issue of Consideration
Whether the judgment and decree of the first appellate court allowing the appeal and dismissing the suit 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 second appeal, confirming the judgment and decree of the first appellate court dated 17.01.2008 in RA No.212/2003, thereby dismissing the suit for declaration and injunction.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- substantial question of law
- interference with findings of fact
- burden of proof
- title and possession
