Case Note & Summary
The appellant, original defendant, challenged the judgment and order of the Additional District Judge, Satara dated 21.7.1989, which allowed the appeal of the plaintiffs (respondents herein) and decreed the suit for possession of part of the suit land and directed an inquiry into mesne profits. The trial court had dismissed the suit. The suit property was Survey No.75/5-A of Mauje Banghar, Taluka and District Satara, admeasuring 89 R. The plaintiffs claimed exclusive ownership of the suit property and that original Survey No.75 was owned by the father of plaintiff nos.1 and 2, Kesu Zade. After Kesu's death, his brother's daughter Rahi filed a partition suit (Civil Suit No.252 of 1956) which was decreed on 25.6.1958, declaring Rahi's half share in original Survey No.75. Rahi obtained actual possession of her half share on 27.8.1963 under a possession receipt, and the original Survey No.75 was divided into Survey No.75/5-A and 75/5-B. The plaintiffs contended that Survey No.75/5-A remained with them. The appellant-defendant claimed possession through a sale deed. The High Court found that the lower appellate court had not framed proper issues and had not considered the effect of the prior partition decree and execution proceedings. The court allowed the second appeal, set aside the appellate court's judgment, and remanded the matter for fresh disposal after framing proper issues and giving both parties an opportunity to lead evidence.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - The High Court in second appeal can interfere if the lower appellate court fails to frame proper issues or misappreciates evidence, leading to a miscarriage of justice. (Para 1-4) B) Property Law - Partition - Effect of Prior Decree - A prior partition decree and execution proceedings are binding on the parties and cannot be ignored in a subsequent suit for possession. (Para 3) C) Civil Procedure - Mesne Profits - Inquiry - An order for mesne profits must be based on proper evidence and inquiry; the appellate court's direction for inquiry without framing issues is unsustainable. (Para 1-4)
Issue of Consideration
Whether the lower appellate court was justified in decreeing the suit for possession and mesne profits without framing proper issues and without considering the effect of the prior partition decree and execution proceedings.
Final Decision
Second appeal allowed. Judgment and order of the Additional District Judge, Satara dated 21.7.1989 set aside. The matter is remanded to the lower appellate court for fresh disposal after framing proper issues and giving both parties an opportunity to lead evidence. No order as to costs.
Law Points
- Second appeal
- substantial question of law
- partition decree
- execution proceedings
- mesne profits
- possession
- civil procedure
