Case Note & Summary
The present Second Appeal was filed by the original defendants challenging the concurrent judgment and decree passed in Regular Civil Suit No. 115/2004 by the Second Joint Civil Judge, Junior Division, Kopargaon, dated 16.12.2008, and confirmed by the learned District Judge – 2, Kopargaon in Regular Civil Appeal No. 76/2011 dated 27.06.2016. The suit was filed by respondent No. 1 (original plaintiff) for partition and separate possession of suit properties initially owned by Barku Mali, father of the plaintiff, defendant Nos. 8 and 9, and deceased husband of defendant No. 1. The trial court decreed the suit, and the first appellate court confirmed the decree. The appellants (original defendants) challenged the concurrent findings in the second appeal. The High Court, after hearing the parties, found that no substantial question of law arose for consideration. The court noted that the genealogy was not disputed and the suit properties were ancestral. The concurrent findings of fact were based on proper appreciation of evidence and did not suffer from any perversity. The court dismissed the second appeal, upholding the decree for partition and separate possession. The court also disposed of the pending civil applications.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The court reiterated that in a second appeal, the High Court can only interfere if there is a substantial question of law. The appeal was dismissed as no such question arose, and the concurrent findings of fact were based on proper appreciation of evidence. (Paras 1-10)
B) Hindu Law - Partition - Coparcenary Property - Hindu Succession Act, 1956 - The suit for partition and separate possession was filed by the plaintiff claiming share in ancestral property. The courts below decreed the suit, and the High Court upheld the decree, finding no error in the concurrent findings. (Paras 3-10)
Issue of Consideration
Whether the Second Appeal involves any substantial question of law as required under Section 100 of the Code of Civil Procedure, 1908, and whether the concurrent findings of the courts below warrant interference.
Final Decision
The Second Appeal is dismissed. The concurrent judgment and decree passed by the trial court and confirmed by the first appellate court are upheld. Pending civil applications are disposed of.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- concurrent findings of fact
- partition suit
- Hindu Succession Act
- 1956
Case Details
2019 LawText (BOM) (07) 8
Second Appeal No. 659 of 2016 with Civil Application No. 13003 of 2016 and Civil Application No. 7769 of 2018
Smt. Vibha Kankanwadi, J.
Mr. Darakh (holding for Mr. A.D. Gakekar) for Appellants, Mr. C.V. Korhalkar for Respondent Nos. 1, 4 and 5
Arunabai Bhausaheb Mali, Dipali Bhausaheb Mali, Sonali Bhausaheb Mali, Rupali Bhausaheb Mali, Sarika Bhausaheb Mali
Manubai Kashinath Dhongade, Sahebrao Vishnu Landbale, Kantilal Vishnu Landbale, Janabai Keruji Gadhave, Saraswati Mahadu Raut
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Nature of Litigation
Second Appeal against concurrent judgment and decree in a suit for partition and separate possession.
Remedy Sought
The appellants (original defendants) sought to set aside the concurrent judgment and decree granting partition and separate possession to the plaintiff.
Filing Reason
The appellants challenged the concurrent findings of the trial court and first appellate court which decreed the suit for partition.
Previous Decisions
The trial court decreed the suit on 16.12.2008, and the first appellate court confirmed the decree on 27.06.2016.
Issues
Whether the Second Appeal involves any substantial question of law as required under Section 100 CPC?
Whether the concurrent findings of fact are perverse or based on no evidence?
Submissions/Arguments
The appellants argued that the courts below erred in decreeing the suit and that substantial questions of law arise.
The respondents supported the concurrent findings and argued that no substantial question of law is involved.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court can only interfere if there is a substantial question of law. The concurrent findings of fact based on proper appreciation of evidence cannot be re-appreciated in second appeal unless perversity is shown.
Judgment Excerpts
Present Appeal has been filed by original defendants challenging the concurrent judgment and decree passed in Regular Civil Suit No. 115/2004...
The genology that has been given in the judgment of the trial Court was not disputed.
Procedural History
The original plaintiff filed Regular Civil Suit No. 115/2004 for partition and separate possession. The trial court decreed the suit on 16.12.2008. The defendants appealed in Regular Civil Appeal No. 76/2011, which was dismissed on 27.06.2016. The defendants then filed the present Second Appeal No. 659 of 2016.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
- Hindu Succession Act, 1956:
