Case Note & Summary
The appellant, Rajkumar Chaganlal Shah, filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 30th November 2017 passed by the District Judge, Solapur, in Civil Appeal No. 42 of 2016, which confirmed the decree dated 30th April 2015 passed by the Civil Judge, Senior Division, Indapur, in Regular Civil Suit No. 40 of 2012. The suit was filed by the appellant for partition and separate possession of ancestral property. The trial court dismissed the suit, holding that the suit was barred by limitation and that the defendants had perfected their title by adverse possession. The first appellate court affirmed these findings. In the second appeal, the appellant contended that the courts below erred in applying the law of limitation and adverse possession, and that the findings were perverse. The High Court, after hearing the parties, held that no substantial question of law arose for consideration. The court noted that the findings of fact recorded by both courts below were concurrent and based on evidence. The appellant failed to demonstrate any perversity or error of law. The court observed that the suit for partition was filed beyond 12 years from the date when the appellant's right to sue accrued, as the defendants had been in exclusive possession and had denied the appellant's title. The High Court dismissed the second appeal, upholding the concurrent findings.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - Concurrent findings of fact cannot be interfered with in second appeal unless perverse or based on no evidence - The appellant failed to show any substantial question of law - Held that the appeal was devoid of merit and dismissed (Paras 1-11). B) Limitation - Partition Suit - Article 65 of Limitation Act, 1963 - Suit for partition by co-owner barred by limitation when defendant pleads ouster and adverse possession for more than 12 years - The courts below found that the appellant was out of possession and the defendants had perfected title by adverse possession - Held that the findings were concurrent and not open to challenge (Paras 5-10). C) Property Law - Adverse Possession - Co-owner - Ouster - Mere long possession by one co-owner does not constitute ouster unless there is denial of title of other co-owners - In this case, the defendants proved ouster and adverse possession for over 12 years - Held that the suit was rightly dismissed (Paras 6-9).
Issue of Consideration
Whether the second appeal under Section 100 of the Code of Civil Procedure, 1908, raises any substantial question of law warranting interference with the concurrent findings of fact recorded by the courts below in a suit for partition and separate possession.
Final Decision
The High Court dismissed the second appeal, holding that no substantial question of law arose for consideration. The concurrent findings of fact were upheld.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- substantial question of law
- limitation
- adverse possession
- partition suit
- limitation for partition
- ouster
- co-owner's possession
