Case Note & Summary
The present second appeal arises from a suit for permanent and mandatory injunction filed by the appellant (original plaintiff) against the respondent (original defendant) in respect of Gat No. 175 in T.S. No. 18 situated in tehsil Amgaon, district Bhandara. The appellant claimed to be the owner and in possession of the suit property and sought to restrain the respondent from disturbing his possession and to demolish boundary walls and a tin shed allegedly constructed by the respondent. The trial court dismissed the suit, holding that the appellant failed to prove his possession and title. The first appellate court confirmed the findings. Aggrieved, the appellant filed the present second appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court framed a substantial question of law regarding the interference with concurrent findings of fact. The court noted that the appellant had not demonstrated any perversity in the findings of the courts below. The evidence on record showed that the respondent was in possession and had constructed the structures. The appellant's claim of possession was not supported by credible evidence. The High Court held that in the absence of any substantial question of law, the second appeal was liable to be dismissed. The court also observed that the concurrent findings of fact were based on proper appreciation of evidence and did not warrant interference. Accordingly, the second appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC, 1908 - Interference with concurrent findings of fact - The High Court in second appeal cannot reappreciate evidence or interfere with concurrent findings of fact unless they are perverse or based on no evidence. The appellant failed to demonstrate any perversity in the findings of the courts below regarding possession and title. (Paras 1-10) B) Property Law - Possession and Title - Burden of Proof - Suit for Injunction - The plaintiff must prove both possession and title to obtain a decree for permanent injunction. In the absence of credible evidence, the suit cannot be decreed. The courts below correctly held that the appellant failed to discharge the burden. (Paras 2-8) C) Evidence - Appreciation of Evidence - Concurrent Findings - The trial court and first appellate court concurrently found that the respondent was in possession of the suit property and had constructed boundary walls and a tin shed. The appellant's claim of possession was not supported by evidence. (Paras 3-7)
Issue of Consideration
Whether the High Court in second appeal under Section 100 of the Code of Civil Procedure, 1908 can interfere with concurrent findings of fact recorded by the trial court and first appellate court, particularly when the appellant failed to prove possession and title over the suit property.
Final Decision
Second Appeal dismissed with no order as to costs.
Law Points
- Second appeal
- substantial question of law
- concurrent findings of fact
- interference limited to perversity
- burden of proof
- possession
- title
- injunction
