Case Note & Summary
The plaintiff, Baburao Maroti Hujdar, filed a suit for possession and separate allotment of 1/3rd share in C.T.S. No. 2168/110/B2 of Jalgaon against his brother, the defendant Bhanudas Maroti Hujdar. The suit property originally belonged to their uncle Rama, who sold a portion to one Babu Krishna Katkar and gifted the remaining portion to his wife Laxmibai. Rama and Laxmibai died issueless, and the plaintiff and defendant inherited the property. The plaintiff claimed that on 18.12.1961, a partition took place between him and the defendant, and each got possession of their respective shares. The plaintiff sought 1/3rd share and possession. The trial court decreed the suit in favor of the plaintiff, and the first appellate court confirmed the decree. The defendant filed a second appeal. The High Court held that no substantial question of law arose, as the findings of fact were concurrent and not perverse. The appeal was dismissed.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The court examined whether the second appeal raised any substantial question of law. Held that concurrent findings of fact cannot be interfered with unless perverse or based on no evidence. (Paras 1-3)
B) Property Law - Partition - Possession - Adverse Possession - The plaintiff claimed 1/3rd share in suit property based on prior partition and possession. The defendant failed to prove adverse possession. Held that the plaintiff's possession was established and the defendant's claim of adverse possession was not proved. (Paras 2-4)
Issue of Consideration
Whether the second appeal involves any substantial question of law warranting interference with concurrent findings of fact?
Final Decision
The second appeal is dismissed. The judgment and order of the Additional District Judge, Jalgaon dated 31.8.1990 in Regular Civil Appeal No. 152 of 1983, and the judgment and decree of the Joint Civil Judge, Junior Division, Jalgaon dated 3.11.1982 in Regular Civil Suit No. 292 of 1980 are confirmed. No order as to costs.
Law Points
- Second appeal
- concurrent findings
- substantial question of law
- partition
- possession
- adverse possession
- limitation
Case Details
2011 LawText (BOM) (02) 14
Second Appeal No. 390 of 1990
Shri V.T. Chodhary for appellants, Shri S.R. Barlinge for respondent nos. 1A, 1C to 1H
Bhanudas Maroti Hujdar (since deceased, through L.Rs.)
Baburao Maroti Hujdar (since deceased, through L.Rs.)
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Nature of Litigation
Second appeal against concurrent findings in a suit for possession and partition of immovable property.
Remedy Sought
Appellant (original defendant) sought to set aside the judgments and decrees of the lower courts which decreed the suit in favor of the plaintiff.
Filing Reason
The appellant challenged the concurrent findings of the trial court and first appellate court which decreed the suit for possession and separate allotment of 1/3rd share.
Previous Decisions
Trial court (Joint Civil Judge, Junior Division, Jalgaon) decreed the suit on 3.11.1982 in Regular Civil Suit No. 292 of 1980. First appellate court (Additional District Judge, Jalgaon) dismissed the appeal on 31.8.1990 in Regular Civil Appeal No. 152 of 1983.
Issues
Whether the second appeal involves any substantial question of law?
Submissions/Arguments
Appellant argued that the lower courts erred in decreeing the suit.
Respondent supported the concurrent findings.
Ratio Decidendi
Concurrent findings of fact cannot be interfered with in a second appeal unless they are perverse or based on no evidence. No substantial question of law arose.
Judgment Excerpts
This is a Second Appeal filed by the appellant (original defendant) challenging the judgment and order, rendered by the learned Additional District Judge, Jalgaon in Regular Civil Appeal No. 152 of 1983 on 31.8.1990, and also assailing the judgment and decree passed by the learned Joint Civil Judge, Junior Division, Jalgaon in Regular Civil Suit No. 292 of 1980 on 3.11.1982, thereby decreeing the said suit in favour of the plaintiff.
Procedural History
The plaintiff filed Regular Civil Suit No. 292 of 1980 in the court of Joint Civil Judge, Junior Division, Jalgaon, which was decreed on 3.11.1982. The defendant appealed to the Additional District Judge, Jalgaon in Regular Civil Appeal No. 152 of 1983, which was dismissed on 31.8.1990. The defendant then filed the present Second Appeal No. 390 of 1990 in the Bombay High Court, Aurangabad Bench.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
