Case Note & Summary
The case involves a second appeal filed by the defendants (appellants) against the judgment and decree dated 12.4.2005 passed by the First Additional Civil Judge (Sr. Dn.), Mangalore, in R.A. No.27/2001, which allowed the appeal of the plaintiffs (respondents) and set aside the judgment and decree dated 9.10.2000 passed in O.S. No.377/1996 by the II Additional Civil Judge (Jr. Dn.), Mangalore. The original suit was filed by the plaintiffs for declaration of title and possession of the suit property. The trial court dismissed the suit, but the first appellate court reversed the decision and decreed the suit. The defendants then filed this second appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court, after hearing the parties, framed the following substantial questions of law: (1) Whether the first appellate court was justified in reversing the judgment of the trial court without properly appreciating the evidence? (2) Whether the suit was barred by limitation? (3) Whether the plaintiffs had proved their title? The court examined the evidence and found that the plaintiffs had produced sufficient documentary evidence to prove their title, including a registered sale deed and revenue records. The defendants claimed adverse possession but failed to prove the necessary elements. The court held that the first appellate court had correctly appreciated the evidence and that no substantial question of law arose. The second appeal was dismissed, confirming the decree of the first appellate court.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The court reiterated that a second appeal lies only on a substantial question of law and not on questions of fact. Concurrent findings of fact based on appreciation of evidence cannot be interfered with unless perverse or based on no evidence. (Paras 1-10) B) Limitation - Suit for Possession - Articles 64 and 65 of Limitation Act, 1963 - The court examined the issue of limitation and held that the suit was filed within time as the plaintiff's possession was within 12 years of the suit. The burden to prove adverse possession was on the defendant. (Paras 11-15) C) Property Law - Adverse Possession - Burden of Proof - The defendant failed to prove ouster or exclusive possession adverse to the plaintiff. Mere possession for a few years does not constitute adverse possession unless it is hostile, open, and continuous. (Paras 16-20)
Issue of Consideration
Whether the second appeal under Section 100 of the Code of Civil Procedure, 1908, raises any substantial question of law warranting interference with the concurrent findings of fact recorded by the courts below.
Final Decision
The second appeal is dismissed. The judgment and decree dated 12.4.2005 passed in R.A. No.27/2001 by the First Additional Civil Judge (Sr. Dn.), Mangalore, is confirmed. No order as to costs.
Law Points
- Section 100 CPC
- substantial question of law
- concurrent findings of fact
- interference in second appeal
- limitation for filing suit
- adverse possession
- burden of proof
