Case Note & Summary
The appellant, Virupakshappa, filed a Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 06.11.2009 passed by the Civil Judge (Sr. Dn.) & CJM, Gadag in R.A. No.145/2002. The lower appellate court had set aside the judgment and decree dated 03.10.2002 passed by the III Addl. Civil Judge (Jr. Dn.), Gadag in O.S. No.65/2000. The appellant had originally filed the suit seeking a decree of declaration and injunction based on adverse possession against the respondents. The trial court had dismissed the suit, but the lower appellate court reversed that decision. The appellant contended that the lower appellate court erred in reversing the trial court's finding on issue No.1, which had been answered in the affirmative. However, the High Court noted that the trial court had answered issue No.1 in the affirmative but issues 2 to 5 in the negative, and dismissed the suit. The lower appellate court, on reappreciation of evidence, found that the plaintiff had not proved adverse possession and dismissed the suit. The High Court held that the findings of the lower appellate court were based on proper appreciation of evidence and were not perverse. The appellant failed to raise any substantial question of law. Consequently, the appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Regular Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court in a second appeal cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The appellant failed to demonstrate any perversity or substantial question of law in the lower appellate court's judgment. (Paras 1-6)
B) Property Law - Adverse Possession - Section 65 Limitation Act, 1963 - Burden of Proof - The plaintiff claiming title by adverse possession must prove that his possession was hostile, open, continuous, and exclusive for a period of 12 years. The trial court's finding that the plaintiff proved execution of an agreement of sale was not sufficient to establish adverse possession. The lower appellate court correctly reversed the trial court's decree. (Paras 3-5)
Issue of Consideration
Whether the judgment and decree of the lower appellate court reversing the trial court's finding on issue No.1 and dismissing the suit for declaration and injunction based on adverse possession is perverse or suffers from a substantial question of law.
Final Decision
The Regular Second Appeal is dismissed with no order as to costs.
Law Points
- Adverse possession
- burden of proof
- concurrent findings of fact
- Section 100 CPC
- Section 65 Limitation Act
- 1963
Case Details
2016 LawText (KAR) (06) 45
Regular Second Appeal No.5181/2010
Sri Hanumanthareddy Sahukar (for appellant)
Virupakshappa S/o Fakirappa Adiyavar
Sharanappa S/o Ningappa Angadi and Others
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Regular Second Appeal under Section 100 CPC against judgment in a suit for declaration and injunction based on adverse possession.
Remedy Sought
Appellant sought to set aside the judgment and decree of the lower appellate court and restore the trial court's decree.
Filing Reason
Appellant claimed title by adverse possession over suit property and sought declaration and injunction.
Previous Decisions
Trial court dismissed the suit; lower appellate court reversed and dismissed the suit.
Issues
Whether the lower appellate court's judgment is perverse or suffers from a substantial question of law?
Whether the appellant proved adverse possession for the statutory period?
Submissions/Arguments
Appellant argued that the lower appellate court erred in reversing the trial court's finding on issue No.1.
Respondents supported the lower appellate court's judgment.
Ratio Decidendi
In a Regular Second Appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The appellant failed to demonstrate any substantial question of law or perversity in the lower appellate court's judgment.
Judgment Excerpts
The appellant filed O.S. No.65/2000 in the Court of III Addl. Civil Judge (Jr. Dn.) at Gadag to pass a decree of declaration and injunction by adverse possession against the respondents.
The Trial Judge on appreciation of the evidence brought on record, answered issue No.1 i.e., the plaintiff having proved that the deceased Rudrappa executed agreement of sale in his favour on 01.10.1985 in the affirmative and issue Nos.2 to 5 in the negative and the suit was dismissed.
The lower appellate court, on reappreciation of evidence, found that the plaintiff had not proved adverse possession and dismissed the suit.
The findings of the lower appellate court are based on proper appreciation of evidence and are not perverse.
Procedural History
Appellant filed O.S. No.65/2000 in the Court of III Addl. Civil Judge (Jr. Dn.), Gadag. The suit was dismissed on 03.10.2002. Appellant filed R.A. No.145/2002 before the Civil Judge (Sr. Dn.) & CJM, Gadag, which was dismissed on 06.11.2009. Appellant then filed the present Regular Second Appeal No.5181/2010 before the High Court of Karnataka, Dharwad Bench, which was dismissed on 10.06.2016.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
- Indian Limitation Act, 1963: Section 65
