Case Note & Summary
The appellant, Nitin Keshavlal Shah, filed a second appeal against the judgment and order dated 31/07/2023 passed by the learned District Judge-1, Latur, in RCA No.30 of 2018, which confirmed the judgment and order dated 12/01/2018 passed by the learned Civil Judge Senior Division, Latur, in Special Civil Suit No.7 of 2017. The appellant was the original plaintiff in the suit, seeking partition and separate possession of a plot No.53 at Latur, claiming it to be ancestral property of his father Keshavlal Shah, who died intestate on 15/01/2004. The respondents were his siblings and legal representatives of the deceased parents. The trial court dismissed the suit, holding that the plaintiff failed to prove that the suit property was joint family property or that he was in possession. The first appellate court confirmed this finding. In the second appeal, the appellant argued that the courts below erred in not considering the evidence properly and that substantial questions of law arose. However, the High Court, after hearing both sides, found that the findings of fact were concurrent and based on evidence. The court noted that the appellant had not raised any substantial question of law as required under Section 100 of the Code of Civil Procedure, 1908. The court observed that the appellant had not proved his possession or the joint nature of the property. The second appeal was dismissed, and the concurrent findings were upheld.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court held that the second appeal does not involve any substantial question of law as the findings of fact recorded by both courts below were concurrent and based on proper appreciation of evidence. The appellant failed to prove that the suit property was joint family property or that he was in possession. (Paras 1-10) B) Property Law - Partition - Joint Family Property - Burden of Proof - The plaintiff, claiming partition, must prove that the property is joint family property and that he is in possession. In this case, the plaintiff failed to discharge the burden, and the courts below rightly dismissed the suit. (Paras 5-9)
Issue of Consideration
Whether the second appeal involves any substantial question of law warranting interference with concurrent findings of fact recorded by the courts below.
Final Decision
Second appeal dismissed; concurrent findings of courts below confirmed.
Law Points
- Second appeal
- substantial question of law
- concurrent findings of fact
- partition suit
- joint family property
- burden of proof
- Section 100 CPC
