Case Note & Summary
The dispute in this second appeal arises from a partition suit between two real brothers, the plaintiff Arjun Gopal Govekar and the defendant Rajaram Gopal Govekar (since deceased, represented by his heirs). The suit property comprised Survey Nos. 134, 135, and 137. The plaintiff sought partition and separate possession of a half share. The trial court in Regular Civil Suit No. 45 of 1979 found that a prior partition deed dated 02.11.1970 (Exh.40) had already partitioned Survey Nos. 134 and 135, and thus rejected the claim for those properties. However, it held that Survey No. 137 was not covered by that deed and decreed partition in respect of it on 25.04.1985. Both parties appealed: the defendant filed Regular Civil Appeal No. 144 of 1989 challenging the decree for Survey No. 137, and the plaintiff filed Civil Appeal No. 150 of 1985 seeking partition of Survey Nos. 134 and 135. The lower appellate court heard both appeals together and by judgment dated 27.04.1993, it reversed the trial court's finding on Survey Nos. 134 and 135, decreeing partition for those as well, while maintaining the decree for Survey No. 137. The defendant then filed this second appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court framed a substantial question of law: whether the lower appellate court's finding that Survey No. 137 was not covered by the partition deed was perverse. The court noted that the deed described the properties as 'three fields' and the suit properties were exactly three survey numbers. The burden was on the defendant to prove that Survey No. 137 was excluded, but he failed to do so. The trial court's finding that Survey No. 137 was not covered was based on a misreading of the evidence. Consequently, the High Court allowed the appeal, set aside the lower appellate court's decree for partition of Survey Nos. 134 and 135, and restored the trial court's decree which had rejected the claim for those properties. The decree for Survey No. 137 was also set aside, and the plaintiff's suit was dismissed in its entirety.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court considered whether the lower appellate court's finding that Survey No. 137 was not covered by the partition deed dated 02.11.1970 was perverse and based on misreading of evidence. Held that the finding was erroneous as the deed described the suit properties collectively and the burden to prove exclusion was on the party asserting it, which was not discharged. (Paras 1-4) B) Property Law - Partition - Interpretation of Deed - The partition deed dated 02.11.1970 (Exh.40) mentioned 'three fields' and the suit properties were Survey Nos. 134, 135, and 137. The trial court found that Survey No. 137 was not covered, but the High Court held that the deed covered all three survey numbers as the description was collective and the defendant failed to prove that Survey No. 137 was excluded. (Paras 1-4)
Issue of Consideration
Whether the document of partition dated 02.11.1970 (Exh.40) covered Survey No. 137, and whether the lower appellate court erred in holding that it did not.
Final Decision
The High Court allowed the second appeal, set aside the judgment and decree of the lower appellate court dated 27.04.1993, and restored the trial court's decree dated 25.04.1985. Consequently, the plaintiff's suit for partition and separate possession was dismissed in its entirety.
Law Points
- Interpretation of partition deed
- Burden of proof on party claiming exclusion from partition
- Scope of second appeal under Section 100 CPC
