Case Note & Summary
The case involves a second appeal filed by the appellants, who were the original plaintiffs, against the judgment and decree of the lower appellate court which dismissed their suit for declaration and injunction. The appellants claimed ownership and possession of certain properties, but the trial court and the first appellate court concurrently found that the appellants failed to prove their title and possession. The High Court, in the second appeal, examined whether any substantial question of law arose. The court noted that the findings of fact were based on evidence and were not perverse. The appellants argued that the lower appellate court had misappreciated the evidence, but the High Court found no perversity. The court held that the second appeal under Section 100 of the Code of Civil Procedure, 1908, is not maintainable merely on the ground of erroneous findings of fact. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC, 1908 - The High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence - The appeal was dismissed as no substantial question of law arose - Held that the findings of the courts below were based on proper appreciation of evidence and not perverse (Paras 1-5).
Issue of Consideration
Whether the impugned judgment and decree of the lower appellate court suffers from any perversity or raises a substantial question of law warranting interference under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The second appeal is dismissed. No order as to costs.
Law Points
- Second appeal
- substantial question of law
- concurrent findings of fact
- perversity
- interference by High Court
Case Details
2017 LawText (BOM) (02) 107
Second Appeal No. 149 of 2004
Mr. V. A. Lawande for appellants; Mr. S. D. Lotlikar, Senior Advocate with Ms. M. Furtado for respondents
Jose Caetano Fernandes and others
Jose Inacio Fernandes and others
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Nature of Litigation
Second appeal against concurrent findings in a civil suit for declaration and injunction.
Remedy Sought
Appellants sought to set aside the judgment and decree of the lower appellate court and restore the trial court's decree.
Filing Reason
Appellants claimed ownership and possession of property, which was denied by the respondents.
Previous Decisions
Trial court dismissed the suit; lower appellate court confirmed the dismissal.
Issues
Whether the impugned judgment suffers from perversity or raises a substantial question of law.
Submissions/Arguments
Appellants argued that the lower appellate court misappreciated the evidence and the findings were perverse.
Respondents supported the concurrent findings and argued no substantial question of law arose.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The findings in this case were based on proper appreciation of evidence and not perverse.
Judgment Excerpts
Heard Mr. V. A. Lawande, learned counsel appearing for the appellants and Mr. S. D. Lotlikar, learned Senior Counsel for the respondents.
The appeal is dismissed. No order as to costs.
Procedural History
The appellants filed a suit for declaration and injunction which was dismissed by the trial court. The first appeal was also dismissed. Hence, the second appeal before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
