Case Note & Summary
The appellants, plaintiffs in the original suit, filed a regular second appeal under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 08.07.2011 passed by the Senior Civil Judge, Ron, in R.A. No.15/2009, which confirmed the judgment and decree dated 17.04.2009 of the Civil Judge (Jr. Dn.), Ron, in O.S. No.116/2008. The trial court had dismissed the suit for declaration and permanent injunction. The plaintiffs claimed a 1/3rd share in land bearing R.S. No.348/2 measuring 1 acre 8 guntas and house bearing VPC No.894 in Abbigeri Village, Ron Taluk, alleging that the property belonged to the propositus Maharudrayya, who died about 70 years ago, and that his sons Shivayya, Kashayya, and Ishayya had died. The defendants were the sons of Shivayya. The plaintiffs contended that they were entitled to a share. The trial court dismissed the suit, and the first appellate court confirmed the dismissal. In the second appeal, the High Court noted that the appeal was filed under Section 100 CPC and that the only question was whether any substantial question of law arose. The court observed that both lower courts had concurrently found that the plaintiffs failed to prove their title and possession. The High Court held that there was no perversity or error of law in the concurrent findings and that no substantial question of law arose. Consequently, the appeal was dismissed.
Headnote
A) Civil Procedure - Second Appeal - Section 100 Code of Civil Procedure, 1908 - Substantial Question of Law - The High Court in a regular second appeal can only interfere if there is a substantial question of law. Concurrent findings of fact by the trial court and first appellate court cannot be re-appreciated unless shown to be perverse or based on no evidence. (Paras 1-3)
B) Property Law - Declaration of Title - Burden of Proof - The plaintiffs claiming 1/3rd share in suit property must prove title and possession. Failure to produce documentary evidence of title or possession leads to dismissal of suit. (Paras 2-3)
Issue of Consideration
Whether the judgment and decree of the lower appellate court confirming the dismissal of the suit for declaration and permanent injunction suffers from any substantial question of law warranting interference under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The regular second appeal is dismissed. The judgment and decree of the lower appellate court confirming the dismissal of the suit are upheld.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- no substantial question of law
- interference limited to perversity or error of law
Case Details
2015 LawText (KAR) (08) 40
Sri. V.G. Kattimani for Sri. B V Somapur
Iramma W/o Maharudrayya Naregal, Channamma D/o Maharudrayya Naregal, Rekha D/o Maharudrayya Naregal, Veerayya S/o Ishayya Naregal
Chandrashekarayya @ Shekarayya S/o Shivayya Naregal, Shivaputrappa S/o Shivayya Naregal, Nandesh S/o Shivayya Naregal, Veerayya S/o Kashayya Naregal
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Regular second appeal against concurrent dismissal of suit for declaration and permanent injunction.
Remedy Sought
Appellants sought declaration of 1/3rd share in suit property and permanent injunction against respondents.
Filing Reason
Appellants claimed title and possession over 1/3rd share in land and house belonging to propositus Maharudrayya, but trial and first appellate courts dismissed the suit.
Previous Decisions
Trial court dismissed O.S. No.116/2008 on 17.04.2009; first appellate court dismissed R.A. No.15/2009 on 08.07.2011.
Issues
Whether the concurrent findings of fact by the lower courts are perverse or based on no evidence?
Whether any substantial question of law arises in the second appeal under Section 100 CPC?
Submissions/Arguments
Appellants argued that they are entitled to 1/3rd share in the suit property as heirs of propositus Maharudrayya.
Respondents contended that the plaintiffs failed to prove title and possession.
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 plaintiffs failed to prove their title and possession, and no substantial question of law arises.
Judgment Excerpts
This is a plaintiffs’ regular second appeal filed against the judgment and decree dated 08.07.2011 made in R.A. No.15/2009 on the file of Senior Civil Judge, Ron confirming the judgment and decree dated 17.04.2009 made in O.S. No.116/2008 on the file of the Civil Judge (Jr. Dn.), Ron dismissing the suit for declaration and permanent injunction.
The appellants – plaintiffs filed original suit for declaration and permanent injunction against the defendants contending that 1/3rd share in the land bearing R.S. No.348/2 measuring 1 acre 8 guntas of Abbigeri Village, Ron Taluk and the house bearing VPC No.894 belongs to the propositus Maharudrayya, who died about 70 years back and has sons by name Shivayya, Kashayya and Ishayya who have died.
Procedural History
The plaintiffs filed O.S. No.116/2008 before the Civil Judge (Jr. Dn.), Ron, which was dismissed on 17.04.2009. The plaintiffs appealed in R.A. No.15/2009 before the Senior Civil Judge, Ron, which was dismissed on 08.07.2011. The plaintiffs then filed the present regular second appeal under Section 100 CPC before the High Court of Karnataka, Dharwad Bench.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
