Case Note & Summary
The dispute concerned property surveyed No. 101/21 in Village Parra, Bardez, Goa, along with House No. 172/3. The original plaintiff, Mathew Francis Rodricks, claimed as a co-owner through succession from his maternal grandfather. A portion of the property had been sold in 1982, and the remaining area included a dwelling house in which the defendants were residing as mundkars by virtue of a 2013 declaration. In June 2016, the plaintiff discovered that an old cowshed adjacent to the dwelling house had been demolished and a new permanent RCC structure was being constructed without permission. Despite complaints to authorities, the construction continued, prompting the filing of Regular Civil Suit No. 233 of 2016/A in the Court of Civil Judge, Senior Division, Mapusa, seeking prohibitory and mandatory injunctions. The defendants, including the appellant Shashikala Dabale (original defendant no. 2), denied the plaintiff’s possession and claimed that a separate pucca structure had been constructed in 1986 by her father, who was a tenant. However, the defendants led no evidence and failed to produce any documentary support. The trial court, after considering the inspection report, photographs, and survey records, held that the plaintiff had established co-ownership and that the mundkarial rights were confined to the dwelling house alone. The construction was unauthorized and sufficiently identified. The suit was decreed on 17 May 2023, restraining further construction and directing demolition. The first appellate court dismissed the defendant’s appeal (Regular Civil Appeal No. 62 of 2023) on 28 April 2025, holding that occupation of the dwelling house, plucking coconuts, and demolition of the cowshed were not sufficient to prove settled possession of the remaining property or the construction site. It distinguished the decision in Ignatius J. R. Fernandes v. Shiva Puti Shirodkar, where settled possession had been established. The second appeal filed before the High Court raised questions about the maintainability of the suit without a declaration of title or recovery of possession, citing Anathula Sudhakar v. P. Buchi Reddy and the bar under Section 54 of the Specific Relief Act. The High Court, after hearing counsel and examining the record, found no substantial question of law. It reiterated the limited scope of Section 100 CPC, emphasizing that the first appellate court is the final court on facts and concurrent findings can be disturbed only if perverse. The court held that where the plaintiff’s title is not disputed and the defendants’ rights are subordinate, a suit for injunction simpliciter is maintainable. The appeal was dismissed at the admission stage, confirming the decrees of both courts below.
Headnote
A) Civil Procedure – Second Appeal – Substantial Question of Law – Code of Civil Procedure, 1908, Section 100 – A second appeal can be entertained only if a substantial question of law is involved; the first appellate court is the final court on facts, and concurrent findings are not open to reappraisal unless perverse or based on no evidence. In the present case, both courts below concurrently found that the plaintiff was a co-owner in possession, the defendants’ rights were confined to the dwelling house, and the new construction was unauthorized. Held, no substantial question of law arose; appeal dismissed at admission stage. (Paras 13-14) B) Property Law – Injunction – Maintainability Without Declaration – Specific Relief Act, 1963, Section 54 – In Anathula Sudhakar v. P. Buchi Reddy, the Supreme Court distinguished cases where the plaintiff is in lawful possession and faces interference, where a suit for injunction simpliciter is appropriate, from cases where the plaintiff is out of possession or title is challenged. Here, the plaintiff’s title was not under any bona fide challenge; the defendants’ tenancy and mundkar rights were subordinate and acknowledged the plaintiff’s title. Therefore, the suit for prohibitory and mandatory injunction without a prayer for declaration or recovery of possession was maintainable. Held, no error in the concurrent decrees. (Paras 15-16)
Issue of Consideration
Whether the second appeal raises a substantial question of law under Section 100 of the Code of Civil Procedure, 1908, particularly regarding maintainability of suit for injunction without declaration of title or recovery of possession when defendants claim independent possession through tenancy and mundkar rights
Final Decision
Second Appeal dismissed at admission stage; no substantial question of law involved; impugned judgments and decrees confirmed; temporary injunction confirmed and mandatory injunction for demolition upheld.
Law Points
- Second appeal under Section 100 CPC is maintainable only if substantial question of law exists
- First appellate court is final on facts
- Concurrent findings not to be interfered unless perverse or based on no evidence
- Suit for injunction without declaration for possession is maintainable when plaintiff is in possession and title is not disputed
- Mundkar rights acknowledge superior title
- In Anathula Sudhakar a suit for injunction simpliciter is appropriate where plaintiff in possession and interference
- Not every suit requires declaration
- Distinction based on possession status
