Case Note & Summary
The present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 was filed by the unsuccessful defendants (appellants) against the judgment and decree dated 15.02.2023 passed in Regular Civil Suit No.7 of 2002, which was affirmed by the judgment and decree dated 02.09.2024 in Regular Civil Appeal No.97 of 2023 by the 8th Additional District Judge, Bhuj–Kachchh. The suit was instituted by the plaintiff (respondent) seeking permanent injunction and removal of a thatched hut from the suit land. The appellants claimed to be in possession of the veranda of Property No. 255 and house bearing Property No. 256 for nearly seventy years, alleging that the hut was used as a kitchen and that their elder member paid rent to one Sakarben, who migrated to Pakistan. They contended that they acquired rights of ownership and possession under the Tenancy Act and that the plaintiff executed an illegal registered sale deed. The trial court decreed the suit in favor of the plaintiff, and the first appellate court affirmed the decree. In the second appeal, the appellants raised substantial questions of law regarding the erroneous nature of the appellate judgment, discarding of oral evidence, non-consideration of Tenancy Act provisions, non-consideration of the Panchnama prepared by the Court Commissioner, and the fact that the hut existed for over 70 years. The High Court held that the second appeal under Section 100 CPC is confined to substantial questions of law and that concurrent findings of fact cannot be interfered with unless perverse. The court found that the appellants failed to produce any documentary evidence to prove tenancy rights or adverse possession. The alleged tenancy agreement was claimed to be lost due to mental illness, but no evidence was led to prove its existence. The Panchnama and Court Commissioner report were considered by the courts below, and their findings were based on proper appreciation of evidence. The High Court concluded that no substantial question of law arose and dismissed the second appeal, confirming the concurrent findings.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The High Court in second appeal can interfere only if there is a substantial question of law. Concurrent findings of fact by courts below cannot be disturbed unless perverse or based on no evidence. The appellants failed to raise any substantial question of law. (Paras 1, 4-6) B) Property Law - Tenancy Rights - Burden of Proof - The appellants claimed tenancy rights but failed to produce any documentary evidence such as rent receipts or tenancy agreement. The alleged lost agreement was not proved. The burden to prove tenancy was on the appellants, which they did not discharge. (Paras 2, 5) C) Property Law - Adverse Possession - Long Possession - Mere long possession for 70 years does not confer ownership unless adverse possession is proved. The appellants' claim of possession as tenants is inconsistent with adverse possession. The courts below rightly held that the appellants failed to establish title by adverse possession. (Paras 2, 5) D) Evidence Act - Oral Evidence - Panchnama - Court Commissioner Report - The Appellate Court considered the oral evidence and the Panchnama prepared by the Court Commissioner. The findings of fact based on appreciation of evidence cannot be re-appreciated in second appeal. No error was committed in discarding the oral evidence. (Paras 4-5)
Issue of Consideration
Whether the judgment and decree of the Appellate Court is erroneous, wrong, illegal and against the settled provisions of law; whether the Appellate Court erred in discarding oral evidence produced by the appellants; whether the Appellate Court erred in not considering the provisions of Tenancy Act; whether the Appellate Court erred in not considering the Panchnama prepared by Court Commissioner; whether the Appellate Court erred in not considering that the claimed hut lies within suit land since last more than 70 years.
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.
Law Points
- Second Appeal under Section 100 CPC
- Substantial question of law
- Concurrent findings of fact
- Interference limited to perversity
- Tenancy Act
- Adverse possession
- Burden of proof
- Oral evidence
- Panchnama
- Court Commissioner report
