Case Note & Summary
The appellants, original plaintiffs, filed a second appeal against the dismissal of their suit for partition of land Gat No.101/1A and House No.4. The plaintiff, Sudhakar Laxman Shewale, claimed the suit property was his self-acquired property. The defendants, his brothers and mother, contended that the plaintiff, as karta, had sold joint family land in 1972 and purchased the suit property in 1998 from the sale proceeds, making it joint family property. The trial court dismissed the suit, and the first appellate court confirmed the finding. The High Court admitted the second appeal on the substantial question of law whether the finding of fact that the suit property was joint family property was consistent with evidence. The court held that a question of fact becomes a question of law only if the finding is without evidence or perverse. Since the finding was based on the plaintiff's admission, it was not perverse. The court dismissed the appeal, upholding the concurrent findings.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court considered whether the finding of fact that the suit property was joint family property was perverse or based on no evidence. Held that a finding of fact based on admission is not perverse unless contrary to evidence, and the substantial question of law does not arise (Paras 1-3).
Issue of Consideration
Whether the finding of fact rendered by the courts below that the suit property, Gat No.101/1A/2, is joint family property is consistent with evidence on record; whether the courts below were justified in law and fact to render it on the basis of so-called admission by the plaintiff; and whether this finding of fact being inconsistent with evidence substantially affects the rights of the plaintiff.
Final Decision
Second Appeal dismissed. The finding of fact that the suit property is joint family property is based on admission and is not perverse. No substantial question of law arises.
Law Points
- Substantial question of law
- Finding of fact
- Perverse finding
- Admission
- Joint family property
- Partition suit
Case Details
2019 LawText (BOM) (06) 101
Second Appeal No.212 of 2015 with Civil Application No.442 of 2015
Mr. Milind M. Sathaye for the Appellants, Mr. Mahendra N. Sandhyanshiv for the Respondent Nos.1,2 and 4
Sudhakar Laxman Shewale and Smt. Chandrabhagabai Laxman Shewale
Madhukar Laxman Shewale, Gangadhar Laxman Shewale, Muralidhar Laxman Shewale, Smt. Durgabai @ Suman Bhaskar Shewale, Mohini Bhaskar Shewale, Manesh @ Mangesh Bhaskar Shewale, Nilesh Bhaskar Shewale
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Nature of Litigation
Second appeal against dismissal of partition suit.
Remedy Sought
Appellants sought partition of land Gat No.101/1A and House No.4.
Filing Reason
Appellants claimed the suit property was self-acquired, but defendants contended it was joint family property purchased from sale proceeds of joint family land.
Previous Decisions
Trial court dismissed the suit; first appellate court confirmed the finding.
Issues
Whether the finding of fact that the suit property is joint family property is consistent with evidence on record?
Whether the courts below were justified in law and fact to render the finding on the basis of admission by the plaintiff?
Whether the finding of fact being inconsistent with evidence substantially affects the rights of the plaintiff?
Submissions/Arguments
Appellants argued that the finding of fact was perverse and inconsistent with evidence.
Respondents contended that the finding was based on the plaintiff's admission and was not perverse.
Ratio Decidendi
A question of fact becomes a question of law only if the finding is without any evidence or material, or if the finding is contrary to evidence or perverse. A finding based on admission is not perverse unless contrary to evidence.
Judgment Excerpts
It is settled law that, a question of law would be a substantial question of law if it directly or indirectly affects the rights of the parties substantially.
A question of fact becomes a question of law if the findings is either without any evidence or material or if the finding is contrary to the evidence or is perverse or there is no direct nexus between fact and the primary fact upon which that conclusion is based.
Procedural History
Plaintiff instituted Regular Civil Suit No.94 of 2006 for partition. Trial court dismissed the suit. First appeal was dismissed. Second appeal admitted on substantial question of law and heard finally.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
