Case Note & Summary
The case involves a Second Appeal under Section 100 of the Code of Civil Procedure, 1908, filed by the legal representatives of the original plaintiff, Octaviano Pires, against the judgment and decree dated 22 November 2024 passed by the learned Ad hoc District Judge-I, Fast Track Court, Panaji, in Regular Civil Appeal No.35 of 2024. The first appellate court had dismissed the appeal and confirmed the judgment and decree dated 7 March 2024 passed by the learned Civil Judge, Senior Division, 'A' Court, Mapusa, in Regular Civil Suit No.166 of 2005/F/A, whereby the suit for mandatory and permanent injunction was dismissed with costs. The original plaintiff, Octaviano Pires, died during the pendency of the proceedings, and the appeal is prosecuted by his legal representatives. The original defendant, Ulhas Dattaram Raikar, also died during the pendency of the suit and is represented by his legal representatives. The principal submission advanced on behalf of the appellants was that the courts below failed to properly appreciate the evidence and that the findings were perverse. The High Court, after hearing the learned advocate for the appellants and perusing the memorandum of appeal, the judgments of both courts below, the pleadings, oral evidence, and documentary material, held that no substantial question of law arose in the appeal. The court found that the concurrent findings of fact were based on proper appreciation of evidence and were not perverse. Consequently, the Second Appeal was dismissed.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court considered whether the Second Appeal raised any substantial question of law. The appellant contended that the findings of the courts below were perverse and based on misappreciation of evidence. The court held that the concurrent findings of fact were based on proper appreciation of evidence and were not perverse, and therefore no substantial question of law arose. (Paras 1-3) B) Property Law - Suit for Injunction - Mandatory and Permanent Injunction - The original plaintiff sought mandatory and permanent injunction against the defendant regarding a property dispute. The suit was dismissed by the trial court and the appeal was dismissed by the first appellate court. The High Court upheld these decisions, finding no error in the concurrent findings. (Paras 1-2)
Issue of Consideration
Whether the Second Appeal under Section 100 of the Code of Civil Procedure, 1908, raises any substantial question of law, particularly whether the findings of the courts below are perverse or based on no evidence.
Final Decision
The Second Appeal is dismissed. No order as to costs.
Law Points
- Second Appeal under Section 100 CPC
- Substantial question of law
- Concurrent findings of fact
- Perversity
- Appreciation of evidence
