Case Note & Summary
The judgment pertains to two second appeals arising from a partition suit concerning family property. The appellant in Second Appeal No.164 of 2002, Basantilal Motilal Tiwari, was the original defendant No.1, and the appellant in Second Appeal No.198 of 2002, Ramashankar Kamtaprasad Tiwari, was the original plaintiff. The dispute involved a claim for partition of ancestral property among family members. The trial court and the first appellate court had concurrently decreed the suit in favor of the plaintiff, ordering partition. The appellant-defendant challenged these concurrent findings in the second appeals before the Bombay High Court. The court, after hearing arguments, found that the appeals did not raise any substantial question of law as required under Section 100 of the Code of Civil Procedure, 1908. The findings of fact by the lower courts were based on evidence, including an oral family arrangement, and were not perverse. Consequently, both second appeals were dismissed, and the decree for partition was upheld. The court did not modify the lower courts' orders and directed the parties to bear their own costs.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court considered whether concurrent findings of fact by lower courts in a partition suit could be interfered with in second appeal. Held that no substantial question of law arose as the findings were based on appreciation of evidence and oral family arrangement, and the appeals were dismissed. (Paras 1-2)
Issue of Consideration
Whether the second appeals involve any substantial question of law warranting interference under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
Both second appeals are dismissed. The decree for partition passed by the lower courts is upheld. No order as to costs.
Law Points
- Concurrent findings of fact not interfered with in second appeal
- Substantial question of law required under Section 100 CPC
- Partition suit based on oral family arrangement
Case Details
2014 LawText (BOM) (02) 203
Second Appeal No.164 of 2002 with Second Appeal No.198 of 2002
S.V.Manohar, Senior Counsel for Appellant (in SA 164/2002); S.R.Deshpande, Counsel for Respondents (in SA 164/2002) and for Appellant (in SA 198/2002)
Basantilal S/o Motilal Tiwari (in SA 164/2002); Ramashankar S/o Kamtaprasad Tiwari (in SA 198/2002)
Ramashankar S/o Kamtaprasad Tiwari and others (in SA 164/2002); Basantilal S/o Motilal Tiwari and others (in SA 198/2002)
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Second appeals against concurrent findings in a partition suit concerning family property.
Remedy Sought
Appellants sought to set aside the decree for partition passed by the lower courts.
Filing Reason
Appellants challenged the concurrent findings of fact by the trial court and first appellate court in the partition suit.
Previous Decisions
Trial court decreed partition in favor of the plaintiff; first appellate court confirmed the decree.
Issues
Whether the second appeals involve any substantial question of law under Section 100 CPC.
Submissions/Arguments
Appellant in SA 164/2002 argued that the lower courts erred in decreeing partition based on an oral family arrangement.
Respondents supported the concurrent findings and argued no substantial question of law arose.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless a substantial question of law is involved. The lower courts' findings based on evidence, including oral family arrangement, were not perverse and did not give rise to any substantial question of law.
Judgment Excerpts
Second Appeal No.164 of 2002 is filed by Basantilal Motilal Tiwari and Second Appeal No.198 of 2002 filed by Ramashankar Kamtaprasad Tiwari.
Both the appeals are dismissed.
Procedural History
The trial court decreed the partition suit in favor of the plaintiff. The first appellate court confirmed the decree. The defendants filed second appeals before the Bombay High Court, which were dismissed.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
