Case BriefsHigh Courts

Bombay High Court: S.C. Gupte, J., dismissed a second appeal filed against the orders of courts below where the suit filed by the respondent-plaintiff for possession of the suit property was decreed.

The plaintiff’s suit was based on his title to the suit property. Plaintiff’s grandfather was the owner of the suit property. According to the request of the defendant’s father, the plaintiff’s grandfather had put him in permissive possession of the property. The same arrangement continued even after the death of both, the plaintiff’s grandfather and the defendant’s father. Now, the plaintiff approached the defendant for evicting the suit property as it was required by the plaintiff’s family. The defendant, however, refused. Consequently, the plaintiff filed the subject suit for possession of the suit property based on his title derived from his grandfather and father.

The defendant contended, inter alia, that the defendants and their predecessor in the title were in possession of the suit property ever since the plaintiff’s grandfather purchased the same and that the suit for possession was clearly barred by the law of limitation.

The High Court was of the view that there was no merit in the defence of limitation. The Court explained: “In a suit for possession based on the plaintiff’s title, the cause of action accrues to him when the defendant sets up a title adverse to him, that is to say, when the possession of the defendant becomes adverse to the plaintiff.”

Considering the facts of the instant case, the Court observed: “It is the plaintiff’s own case here, and which is not disbelieved by either of the courts below, that all along, till possession of the suit property was demanded from the defendants, their possession was permissive, first through the predecessor of the plaintiff (deceased Rama) and later through the plaintiff and his father (also deceased). It was only on 15 May 2006, when possession was demanded by the plaintiff and his father and denied by the defendants that the cause of action to seek recovery of possession on the basis of their title accrued unto the plaintiff and his father and the suit filed immediately thereafter was within time.”

Finding no merit in the challenge to the impugned orders, the High Court dismissed the instant appeal. [Balasaheb Govind Basugade v. Rajendra Shivaji Kumthekar, 2019 SCC OnLine Bom 5608, decided on 28-11-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: The Bench of Tarlok Singh Chauhan, J. allowed an appeal challenging the judgment of first appellate court whereby the trial court’s order was set aside without taking the findings of trial court into consideration.

Appellant herein was a defendant in a suit for possession filed by the respondent (plaintiff before trial court), which was dismissed by the trial court. In an appeal by the respondent-plaintiff, the first appellate court set aside the trial court’s order. Aggrieved thereby, the instant regular second appeal was filed. 

The sole issue pertained to the scope, ambit and power of first appellate court while deciding first appeal. It was opined that the right to file first appeal against a decree under Section 96 of the Code of Civil Procedure, 1908 is a valuable legal right of the litigant. The jurisdiction of first appellate court while hearing first appeal is very wide like that of trial court and it is open to the appellant to attack all findings of fact or/and of law in the first appeal. It is the duty of first appellate court to appreciate the entire evidence, and then it may come to a different conclusion. While doing so, the judgment of first appellate court must reflect its conscious application of mind and record findings supported by reasons, on all issues along with the contentions put forth, and pressed by the parties. While reversing a finding of fact, the first appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding.

The Court noted that in the instant case, the first appellate court had not at all adverted to findings and reasons recorded by the trial court and had simply chosen to write a separate judgment without taking into consideration any of the facts and circumstances that prevailed upon the trial court to dismiss the suit.

In view of the above, the impugned order of the first appellate court was set aside, and the matter was remanded to it for a fresh decision.[Sunder Singh v. Roop Singh, 2019 SCC OnLine HP 550, decided on 26-04-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Anil Kshetarpal, J. disposed of a revision petition by allowing construction of a portion of the subject building.

Plaintiffs had filed a suit for possession of a land claiming themselves to be the owner of the said property. They claimed that the further reconstruction was done during the pendency of the suit.

The defendant-petitioner claimed that the entire disputed area was under construction and only the areas that were marked by them were to be completed which only comprised of a house which was incomplete on account of the stay order. Additionally, it was alleged by them that the plaintiff was using it for their residential purposes. Referring to the reconstruction at the time of the suit, they contended that the construction was already complete by then.

The High Court held that no useful purpose would be served if the defendant-petitioner was not allowed to finish construction of their house. Accordingly, the revision petition was allowed.[Jagdish v. Manjeet, 2017 SCC OnLine P&H 5048, Order dated 06-12-2017]