when the courts below have recorded concurrent findings, in exercise of its jurisdiction under Section 100 C.P.C., the High Court erred in re-appreciating the evidence and in interfering with the findings.-2015 S.C.-MSKLAWREPORTS


To the south of the  property  sold  to
the respondents-defendants, 'A' schedule property as shown in the  suit  was
earmarked  for  the  purpose  of   road.   However,  the  City   Development
Authority did not approve the same and hence no road was  formed.   
Case  of
the appellants-plaintiffs is that since no road was formed,  they  continued
to be the owners of the 'A' schedule property  and  they  are  the  absolute
owners of the same.
B' schedule property is the portion of  'A'  schedule
property measuring 21/2'  x  80'  which  according  to  the  plaintiffs  was
encroached by the defendants. 
From the evidence of DW-1-President and  Councilor  of  the
Municipality  and  DW-4,  Assistant  Commissioner,  courts  below   recorded
findings  that the 'A' schedule property  is   still  in  the  name  of  the
plaintiffs and that there was no acquisition  and  payment  of  compensation
made to the first plaintiff in respect of  the disputed property.

In
the first appellate  court,  the  interlocutory  application  filed  by  the
plaintiffs, one Sri Basavaraj, Assistant Engineer, Public  Works  Department
was appointed as the Court Commissioner, who  had  inspected  the  spot  and
filed the report and also the sketch.  Based on  the  report  of  the  Court
Commissioner and Ex. P5 and other evidence, the first  appellate  court  has
recorded the findings of fact that defendants have encroached upon suit  'A'
schedule property and the same read as under:-

"...No doubt shall arise to hold that, it is proved that, defendant  Nos.  2
and 3 have encroached upon 781/4'  x  2'  in schedule  'A'  property,  which
is also corroborated by Ex-P5.  It is also the first rough sketch  submitted
by the Court Commissioner.  But though the extent of the  encroachment  area
reported therein does not absolutely tally with the extent of  'B'  schedule
property, encroachment of 781/4' x 2' by defendant Nos. 2 and 3  out  of  it
is proved...."

The  courts
below have recorded  concurrent findings that  'A' schedule   property   was
earmarked for road and that no road was  formed as the  City   Development
Authority did not approve the same and  continued
to be the owners of the 'A' schedule property  and  they  are  the  absolute
owners of the same. Thus the   plaintiffs  have
proved  their ownership to 'A'  schedule property and  that  the  defendants
have failed to prove that it is a road  having the  nearest  approach.   
 It
was submitted that when the courts below have recorded concurrent  findings,
in exercise of its jurisdiction under Section 100  C.P.C.,  the  High  Court
erred in re-appreciating the evidence and in interfering with the  findings.

In the light of  concurrent  findings
of fact, no substantial questions of law arose in the High Court  and  there
was no substantial ground for re-appreciation of evidence.   While  so,  the
High Court proceeded to observe that the first plaintiff has  earmarked  the
'A' schedule property for road and that she  could  not  have  full  fledged
right and on that premise proceeded to hold that declaration to  plaintiffs'
right cannot be granted.  In exercise  of  jurisdiction  under  Section  100
C.P.C., concurrent findings of fact  cannot  be  upset  by  the  High  Court
unless  the  findings  so  recorded  are  shown  to  be  perverse.   In  our
considered view,  the High Court did not keep in view  that  the  concurrent
findings recorded by the courts below,  are based on  oral  and  documentary
evidence and the judgment of the High Court cannot be sustained. 2015 S.C.-MSKLAWREPORTS

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