Case Note & Summary
The appellants, legal representatives of the original plaintiff Abdulsab Nannesab Totad @ Jekinkatti, filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 15.9.2004 passed by the Senior Civil Judge, Shiggaon, in R.A. No. 31/2003, which confirmed the dismissal of O.S. No. 82/1996 by the Civil Judge (Jr. Dn.), Shiggaon. The suit was for declaration of title and permanent injunction in respect of agricultural land. The trial court dismissed the suit holding that the plaintiff failed to prove his title and possession. The first appellate court concurred with these findings. In the second appeal, the appellants contended that the lower appellate court erred in not properly appreciating the evidence. The High Court, after hearing the counsel, found that the findings of fact recorded by both courts below were concurrent and based on evidence. The court reiterated that under Section 100 CPC, the High Court's jurisdiction is limited to substantial questions of law and cannot re-appreciate evidence unless the findings are perverse. Since no perversity or jurisdictional error was shown, the appeal was dismissed. The court upheld the concurrent findings and confirmed the dismissal of the suit.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Concurrent Findings of Fact - Interference - The High Court in a second appeal cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The court held that no substantial question of law arose for consideration. (Paras 1-10) B) Property Law - Suit for Declaration and Injunction - Burden of Proof - The plaintiff must prove title and possession. The trial court and first appellate court concurrently found that the plaintiff failed to prove his title and possession over the suit property. (Paras 1-10)
Issue of Consideration
Whether the judgment and decree of the lower appellate court calls for interference in a second appeal under Section 100 CPC when the findings of fact are concurrent and based on appreciation of evidence.
Final Decision
The High Court dismissed the second appeal, confirming the judgment and decree of the lower appellate court. No order as to costs.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- no substantial question of law
- interference limited to perversity or jurisdictional error
