Case Note & Summary
The appellant, originally the plaintiff, filed a suit for declaration and perpetual injunction claiming that the suit property was ancestral and that he was in lawful possession. He alleged that the defendants had encroached by constructing a cattle shed and toilet. The trial court dismissed the suit, holding that the plaintiff failed to prove title and possession, and that the suit was barred by limitation. The first appellate court confirmed the findings. In the Second Appeal, the High Court found no substantial question of law, as the concurrent findings were based on evidence. The appeal was dismissed.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The court examined whether the Second Appeal involved any substantial question of law. Held that the findings of fact by the lower courts were concurrent and based on evidence, and no substantial question of law arose for consideration (Paras 1-10).
B) Property Law - Title and Possession - Burden of Proof - The plaintiff claimed title and possession over ancestral property. The courts below found that the plaintiff failed to prove title and that the defendants were in possession. Held that the burden of proof was on the plaintiff, which he failed to discharge (Paras 2-8).
C) Limitation - Suit for Possession - Article 65 of Limitation Act, 1963 - The suit was filed beyond 12 years from the date of dispossession. The courts below held that the suit was barred by limitation. Held that the plaintiff's claim for possession was time-barred (Paras 5-9).
Issue of Consideration
Whether the Second Appeal raises any substantial question of law warranting interference under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The Second Appeal is dismissed. No substantial question of law arises. The judgment and decree of the lower courts are confirmed.
Law Points
- burden of proof
- title
- possession
- limitation
- adverse possession
- concurrent findings
- substantial question of law
Case Details
2026 LawText (BOM) (06) 118
Second Appeal No. 139 of 2026 with Interim Application (Stamp) No. 4682 of 2026
Mr. Tejpal Ingale i/b. Adv. Vrunali Vilankar
Manohar Aatmaram Sawant Murkar Since deceased by Lrs. 1(a) Sneha Nandkumar Kadam (Charusheela Manohar Sawant), 1(b) Vijay Manohar Sawant, 1(c) Santosh Manohar Sawant, 1(d) Ankita Rajnikant Paliyekar (Satvasheela Manohar Sawant)
1. Ranjan Hareshwar Prabhu, 2. Swapnil Govind Prabhu, 3. Sunita Govind Prabhu, 4. Babaji Ravji Murkar (Deceased) A) Vijaya Babaji Murkar, B) Suresh Babaji Murkar, C) Vitthal Babaji Murkar, D) Madhukar Babaji Murkar
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Nature of Litigation
Civil suit for declaration and perpetual injunction regarding ancestral property.
Remedy Sought
Appellant sought quashing of lower court judgments and decree for possession, removal of encroachment, and compensation.
Filing Reason
Appellant claimed defendants encroached on ancestral property by constructing cattle shed and toilet.
Previous Decisions
Trial court dismissed suit; first appellate court confirmed dismissal.
Issues
Whether the Second Appeal raises any substantial question of law under Section 100 CPC.
Whether the plaintiff proved title and possession over the suit property.
Whether the suit was barred by limitation.
Submissions/Arguments
Appellant argued that the lower courts erred in dismissing the suit and that there were substantial questions of law.
Respondents supported the concurrent findings of fact.
Ratio Decidendi
The court held that the findings of fact by the lower courts were concurrent and based on evidence, and no substantial question of law arose for interference under Section 100 CPC.
Judgment Excerpts
The Appellant has filed the present Second Appeal thereby praying for quashing and setting aside the judgment and decree dated 18th March 2026 passed by the learned Principal District Judge, Sindhudurg at Oros in Regular Civil Appeal No.85 of 2018 and the Cross-Objections filed by Respondent Nos.4(a) to 4(d), arising out of the judgment and decree dated 27th April 2018 passed by the learned Civil Judge, Junior Division, Malvan in Regular Civil Suit No.88 of 2009.
Procedural History
The plaintiff filed Regular Civil Suit No.88 of 2009 in the court of Civil Judge, Junior Division, Malvan, which was dismissed on 27th April 2018. The plaintiff appealed to the Principal District Judge, Sindhudurg at Oros in Regular Civil Appeal No.85 of 2018, which was dismissed on 18th March 2026. The plaintiff then filed the present Second Appeal No.139 of 2026 in the Bombay High Court, Circuit Bench at Kolhapur.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
- Limitation Act, 1963: Article 65
