Case Note & Summary
The appellant, Smt. Sathyamma, filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 3.12.2012 in R.A. No. 75/2012 passed by the Senior Civil Judge and JMFC, Channapatna, which dismissed her appeal and confirmed the judgment and decree dated 21.4.2011 in O.S. No. 100/2007 passed by the Additional Civil Judge (Jr. Dn.), Channapatna. The appellant was the plaintiff in the original suit seeking a permanent injunction against the respondent, Smt. Kempamma, claiming absolute ownership and possession of suit property bearing Kaneshmari No. 146/86 measuring 31 feet North to South and 51 feet East to West situated at Kolur village, Malur Hobli, Mudigere Grama Panchayath, Channapatna Taluk. The trial court dismissed the suit, and the first appellate court confirmed the dismissal. The High Court, at the time of admitting the appeal on 31.10.2014, framed two substantial questions of law: (1) Whether the suit for injunction was maintainable? and (2) Whether the appreciation of evidence by the courts below was perverse? The court examined the pleadings and evidence, noting that the plaintiff claimed title through a sale deed but failed to produce the original or certified copy, and the witnesses examined did not support her possession. The defendant denied the plaintiff's title and possession. The trial court and first appellate court concurrently found that the plaintiff failed to prove her title and possession. The High Court held that the findings were based on proper appreciation of evidence and were not perverse. The suit for injunction without proof of title was not maintainable. The second appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The High Court in a second appeal can only interfere if there is a substantial question of law. Concurrent findings of fact based on proper appreciation of evidence cannot be re-opened unless perverse. Held that the courts below correctly dismissed the suit as plaintiff failed to prove title and possession (Paras 1-10). B) Property Law - Injunction - Burden of Proof - Specific Relief Act, 1963, Section 38 - In a suit for permanent injunction, the plaintiff must prove her title and possession. Mere filing of suit does not shift burden to defendant. Held that plaintiff's failure to produce cogent evidence of title and possession justified dismissal (Paras 2-9).
Issue of Consideration
Whether the suit for injunction was maintainable and whether the appreciation of evidence by the courts below was perverse.
Final Decision
Second appeal dismissed. No order as to costs.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- concurrent findings of fact
- perversity
- maintainability of suit for injunction without proof of title
