Case Note & Summary
The legal representatives of the original plaintiff in O.S. No. 104/1982 (old No. 215/1968) filed a second appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) before the High Court of Karnataka at Bengaluru. The appeal challenged the concurrent judgments and decrees of the trial court (Munsiff, Devanahalli) dated 28.03.1987 and the first appellate court (Prl. Civil Judge (Sr. Dn.), Bangalore Rural District) dated 22.12.2001, which dismissed the suit for declaration of title and permanent injunction in respect of the suit schedule property. The original plaintiff, Thimmarayappa (since deceased), had instituted the suit claiming title and possession over the property. The trial court dismissed the suit, and the first appellate court confirmed that dismissal. In the second appeal, the appellants (legal representatives of the deceased plaintiff) contended that the courts below erred in rejecting the suit. However, the High Court noted that the original defendant Nos. 2 to 9 were not parties to the appeal, and the only issue was whether the suit schedule property was available for the plaintiff to claim relief. The court observed that the plaintiff had relied on a sale deed to prove title, but failed to examine the attesting witnesses to the document. The non-examination of attesting witnesses without any explanation led to an adverse inference against the plaintiff. The concurrent findings of the courts below were based on proper appreciation of evidence and did not suffer from any perversity or error of law. Consequently, the High Court dismissed the second appeal, upholding the judgments of the lower courts.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The court reiterated that in a second appeal, interference with concurrent findings of fact is permissible only if there is a substantial question of law or the findings are perverse. The appellant failed to demonstrate any such error. (Paras 1-3) B) Evidence Act - Proof of Execution of Document - Section 68 - Attesting Witness - Where a party relies on a sale deed to prove title, the attesting witnesses must be examined to prove its execution. Non-examination of attesting witnesses without sufficient explanation leads to an adverse inference against the party. (Para 3) C) Property Law - Title and Possession - Burden of Proof - The plaintiff must prove both title and possession to succeed in a suit for declaration and injunction. The concurrent findings of the trial court and first appellate court that the plaintiff failed to discharge this burden were upheld. (Paras 1-3)
Issue of Consideration
Whether the suit schedule property is available for the plaintiff to claim declaration of title and permanent injunction, and whether the concurrent findings of the courts below suffer from any perversity or error of law warranting interference under Section 100 CPC.
Final Decision
The High Court dismissed the second appeal, upholding the concurrent judgments of the trial court and first appellate court dismissing the suit for declaration and permanent injunction.
Law Points
- Section 100 CPC
- second appeal
- concurrent findings
- substantial question of law
- burden of proof
- title
- possession
- sale deed
- attesting witness
- adverse inference
