Case Note & Summary
The case involves a second appeal filed by the appellants (defendants in the original suit) against the judgment and decree of the first appellate court, which confirmed the trial court's decree for partition and separate possession of the suit property in favor of the respondents (plaintiffs). The suit property was originally owned by one Bica Gauns Dessai, who died intestate. The plaintiffs, being some of the legal heirs, sought partition claiming that the property was joint family property. The defendants opposed, contending that the property was self-acquired by Bica and not joint. The trial court, after considering evidence, held that the plaintiffs had failed to prove that the property was joint family property and dismissed the suit. However, on appeal, the first appellate court reversed the trial court's decision and decreed the suit, holding that the property was indeed joint family property. The defendants then filed the present second appeal. The High Court, after hearing the parties, found that the first appellate court had correctly appreciated the evidence and that there was no substantial question of law involved. The court noted that the concurrent findings of fact were based on proper appreciation of evidence and were not perverse. The second appeal was dismissed, affirming the decree for partition.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court reiterated that in a second appeal, the High Court can only interfere if there is a substantial question of law. Concurrent findings of fact by the trial court and first appellate court cannot be re-appreciated unless perverse or based on no evidence. The appeal was dismissed as no such question arose. (Paras 1-10) B) Property Law - Partition - Joint Family Property - Burden of Proof - The appellants claimed the suit property was ancestral joint family property, but the courts below found that the property was self-acquired by the predecessor and not joint. The burden to prove jointness was on the appellants, which they failed to discharge. The concurrent findings were upheld. (Paras 5-8)
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.
Final Decision
The High Court dismissed the second appeal, holding that no substantial question of law arose and that the concurrent findings of fact were not perverse.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- no substantial question of law
- partition suit
- burden of proof
- joint family property
