Case Note & Summary
The case involves a second appeal filed by the original defendants against the concurrent decrees of the trial court and first appellate court in a suit for possession and mesne profits. The plaintiffs, Indubai and her two sons, claimed that the suit land was their ancestral property and that the defendants were licensees who had been allowed to occupy a portion. The defendants denied title and claimed adverse possession. The trial court decreed the suit, and the first appellate court confirmed. In second appeal, the High Court held that no substantial question of law arose, as the findings were based on evidence and not perverse. The court reiterated that a co-owner can sue for possession without impleading other co-owners, and that adverse possession cannot be claimed against a co-owner without ouster. The appeal was dismissed.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court held that concurrent findings of fact cannot be interfered with in second appeal unless perverse or based on no evidence. The appeal was dismissed as no substantial question of law arose. (Paras 1-10)
B) Property Law - Co-owner's Suit for Possession - Maintainability - The court held that a co-owner can sue for possession without impleading other co-owners, as possession of one co-owner is possession for all. The plaintiffs, as co-owners, were entitled to seek possession against the defendants who were not co-owners. (Paras 5-8)
C) Property Law - Adverse Possession - Against Co-owner - The court held that adverse possession cannot be claimed against a co-owner unless there is ouster or denial of title. The defendants, being licensees, could not claim adverse possession. (Paras 6-9)
Issue of Consideration
Whether the second appeal raises any substantial question of law warranting interference with concurrent findings of fact?
Final Decision
The second appeal is dismissed. The concurrent decrees of the trial court and first appellate court are confirmed. No order as to costs.
Law Points
- Co-owner can maintain suit for possession without impleading other co-owners
- Adverse possession cannot be claimed against co-owner
- Concurrent findings of fact not interfered with in second appeal
- Section 100 CPC limits second appeal to substantial question of law
Case Details
2018 LawText (BOM) (12) 1
Second Appeal No. 122 of 2018 with Civil Application No. 1875 of 2018
Mr. U.S. Malte for Appellants, Ms. Smeeta S. Kulkarni holding for Mrs. Kiran Nagarkar for Respondent Nos. 1A to 1D and 2 and 3
Kiran Gulabchand Gandhi and others (legal heirs of Gulabchand Gandhi)
Shakuntala Laxman Shirsath and others (legal heirs of Indubai Pundalik Jape) and Haribhau Pundalik Jape, Chandrakant Pundalik Jape
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Nature of Litigation
Second appeal against concurrent decrees in a suit for possession and mesne profits.
Remedy Sought
Appellants (original defendants) sought to set aside the decrees of the trial court and first appellate court which ordered possession in favor of the respondents (original plaintiffs).
Filing Reason
The appellants challenged the concurrent findings of fact on the ground that the suit was not maintainable as other co-owners were not impleaded and that they had acquired title by adverse possession.
Previous Decisions
The trial court decreed the suit for possession; the first appellate court confirmed the decree.
Issues
Whether the second appeal raises any substantial question of law?
Whether a co-owner can maintain a suit for possession without impleading other co-owners?
Whether the defendants acquired title by adverse possession?
Submissions/Arguments
Appellants argued that the suit was not maintainable as other co-owners were not impleaded and that they had perfected title by adverse possession.
Respondents argued that the appellants were licensees and that the concurrent findings of fact were based on evidence and should not be interfered with.
Ratio Decidendi
In a second appeal under Section 100 CPC, the court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. A co-owner can sue for possession without impleading other co-owners, and adverse possession cannot be claimed against a co-owner without ouster.
Judgment Excerpts
This is an Appeal by the original defendants.
The suit land was their ancestral property.
The concurrent findings of fact cannot be interfered with in second appeal.
Procedural History
The plaintiffs filed Regular Civil Suit No. 678 of 2004 for possession and mesne profits. The trial court decreed the suit. The defendants appealed to the first appellate court, which confirmed the decree. The defendants then filed the present second appeal.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
