Case Note & Summary
The appellant, Shree Nootan Kelavani Mandal, a trust registered under the Bombay Public Trust Act, 1950, filed a Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) challenging the concurrent findings of the trial court and the first appellate court. The dispute concerned land bearing Survey No.322/1 admeasuring Hectare 00-89-33 sq.mtrs. situated in Village Bhagdawada. The plaintiff trust claimed that in 1956, one Dayabhai agreed to exchange this land with another piece of land belonging to the trust. According to the plaint, possession of the suit land was handed over to the trust in 1957, and in turn, the trust gave possession of Survey No.430/3 and Survey No.431/1 to Dayabhai. The trust alleged that since 1956, it was in possession of the disputed land pursuant to an oral exchange agreement. In 1985, Dayabhai applied to the Collector for permission to sell the disputed land as it was 'new tenure land'. The trust filed Special Civil Suit No.22 of 2016 seeking declaration of ownership and permanent injunction. The trial court dismissed the suit on 31.08.2024, holding that the plaintiff failed to prove the oral exchange, possession, or any legal right. The first appellate court dismissed Regular Civil Appeal No.45 of 2024 on 12.11.2025, confirming the trial court's findings. In the Second Appeal, the High Court examined whether any substantial question of law arose. The court noted that the findings of fact were concurrent and based on evidence. The plaintiff did not produce any documentary evidence such as mutation entries, revenue records, or permission under the Bombay Public Trust Act for the exchange. The suit was also barred by limitation as it was filed in 2016 claiming possession since 1956. The High Court held that no substantial question of law was involved and dismissed the appeal, upholding the concurrent findings.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The appellant failed to demonstrate any perversity or error of law in the findings of the trial court and first appellate court. (Paras 1-34) B) Property Law - Oral Exchange - Proof of Possession - The plaintiff claimed possession since 1956 under an oral exchange agreement, but failed to produce any documentary evidence of possession or mutation entries. The courts below rightly held that the plaintiff did not prove possession or the exchange. (Paras 3-20) C) Limitation - Suit for Declaration - The suit was filed in 2016 claiming possession since 1956, which is barred by limitation under Article 58 of the Limitation Act, 1963. The plaintiff did not seek possession but only declaration and injunction, which is not maintainable without possession. (Paras 21-28) D) Trust Property - Bombay Public Trust Act, 1950 - The plaintiff trust claimed ownership by exchange, but no permission under Section 36 of the Bombay Public Trust Act was obtained for the exchange. The transaction was void ab initio. (Paras 29-34)
Issue of Consideration
Whether the Second Appeal under Section 100 of the Code of Civil Procedure, 1908 raises any substantial question of law warranting interference with the concurrent findings of fact recorded by the courts below.
Final Decision
The High Court dismissed the Second Appeal, holding that no substantial question of law arose. The concurrent findings of fact were not perverse and did not warrant interference under Section 100 CPC.
Law Points
- Second Appeal under Section 100 CPC
- Substantial question of law
- Concurrent findings of fact
- Interference limited to perversity
- Oral exchange of land
- Adverse possession
- Limitation
- Bombay Public Trust Act
- 1950
