Case Note & Summary
The appellant, Aravind S/o Krishnaji Kulkarni, filed Regular Second Appeal No.161/2002 against the judgment and decree dated 4.9.2001 passed in R.A.No.37/96 by the Prl. Civil Judge (Sr.Dn.), Hubballi, which allowed the appeal and set aside the judgment and decree of the trial court. The suit was for declaration of title and permanent injunction in respect of certain immovable property. The trial court had decreed the suit, but the lower appellate court reversed it, dismissing the suit. The appellant challenged this reversal in the second appeal under Section 100 CPC. The respondents were the legal representatives of the original defendants. The High Court, after hearing the parties, found that the lower appellate court had correctly appreciated the evidence and that there was no perversity or illegality in its findings. The court noted that the appellant failed to raise any substantial question of law as required under Section 100 CPC. The concurrent findings of fact could not be interfered with. The court also observed that the plaintiff had not proved his title and possession satisfactorily. The suit was also barred by limitation as the plaintiff had not filed it within 12 years of the cause of action. Accordingly, the second appeal was dismissed, confirming the dismissal of the suit.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court held that in a second appeal, the court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The appellant failed to raise any substantial question of law. (Paras 1-10) B) Property Law - Declaration of Title - Burden of Proof - The plaintiff must prove his title and possession. In the absence of clear evidence, the suit for declaration and injunction cannot be decreed. (Paras 5-8) C) Limitation - Suit for Possession - Article 65 of Limitation Act, 1963 - The defendant in possession can claim adverse possession, but the plaintiff must prove his title within 12 years. (Para 6)
Issue of Consideration
Whether the judgment and decree of the lower appellate court suffer from any perversity or illegality warranting interference under Section 100 CPC.
Final Decision
The second appeal is dismissed. The judgment and decree of the lower appellate court are confirmed.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- no substantial question of law
- limitation for filing suit
- adverse possession
- burden of proof
