Second appeal by a defendant against the decree of a consent suit for declaration of title and injunction. The High Court held that evidence cannot be re-appreciated under Section 100 CPC absent perversity and dismissed the appeal.
Second appeal dismissed; decree of lower courts upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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sa170-89
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
SECOND APPEAL NO.170 OF 1989
Gourishankar Prabhuappa Nigudge, Age-46, Occ - Agriculture R/o Latur
APPELLANT
VERSUS
All R/o Latur, Taluka and District-Latur
Mr. N. P. Patil (Jamalpurkar), Advocate for the appellant Mr. A. B. Kharosekar, Advocate for respondents
[CORAM : N. W. SAMBRE, J.] DATE : 15th JANUARY, 2015
ORAL JUDGMENT :
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the court of learned 8th Joint Civil Judge, Junior Division, Latur for declaration of ownership and perpetual injunction in respect of municipal house No. 347/5 (old) and 189/1/10 (New), situated on Papnash Road, Latur. It was claimed by the plaintiffrespondents that they are brothers inter se, plaintiff No.1 is elder brother of plaintiff No.2 and was the Karta of the joint family and they reside jointly. The defendant is distantly related to the plaintiffs and is neighbour of them and further claimed that relation between plaintiffs and defendant is only inferred out of their common surname, but for any blood relationship.
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sa170-89
disposables. It is further claimed that the defendant has no concern, whatsoever, with said house, but the defendant and his family members are trying to dispossess the plaintiffs from the open space. It is further claimed by the plaintiffs that on number of occasions, requests were made to the defendant not to obstruct plaintiffs' enjoyment, in spite of the same, the defendant continued his activities, which prompted the plaintiffs to file suit in question.
“ ISSUES
(1) Whether the plaintiffs is in actual possession of the suit premises
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sa170-89
6. My findings on the above issues are as under:-
My Findings
and oral evidence, by a detailed judgment, has decreed the suit of the plaintiffs. It was declared by the learned trial court that the plaintiffs are owners of Old municipal house No. 347/5 and new municipal house No. 189/1/10 situated at Navandar Galli to Ujaniwala Galli, Latur i.e. the suit property and further endorsed the maps in favour of the plaintiffs, which are placed at Exhibit206, approved by the municipal council and the map prepared by
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Court Commissioner at Exhibit-97. Learned trial court further restrained the defendant, his agents, servants and family members from causing interference in the peaceful possession of the plaintiffs over the suit house described in paragraph No.3 of the plaint.
“POINTS
(1) Whether the Plaintiffs Respondents have proved their title and possession to the suit property as described in the plaint.
(2) Whether there is obstruction to the Plaintiffs enjoyment from the Defendant.
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declaration of their title and for injunction.
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decreeing the suit. He further submits that the learned lower appellate court has rightly appreciated the evidence and reappreciation of the same by the second appellate court is beyond the scope of section 100 of the Code of Civil Procedure. He further urged that the present second appeal is liable to be rejected.
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extract of tax register of the suit house, Exhibit-108 – a city survey map and Exhibit-93 a copy of will deed. The trial court, having regard to the documentary evidence, which in clear terms has established the case put forth by the plaintiffs, has decreed the suit.
out. Second appeal, which is devoid of merits stands dismissed.
[N. W. SAMBRE, J.]
drp/B14/sa170-89
3 issues framed by the court
Whether the High Court can re-appreciate evidence under Section 100 CPC to reach a different conclusion.
Whether there was perversity in the concurrent findings of the trial court and lower appellate court.
Whether the second appeal is maintainable on merits.
1 provisions across 1 enactments
Gourishankar Prabhuappa Nigudge
Mallikarjin Shivappa Nigudge
N. W. Sambre
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
