Case Note & Summary
The appellants, original plaintiffs, filed a suit for partition and separate possession of suit property claiming it to be joint family property. The trial court dismissed the suit on 01.01.2001, and the lower appellate court dismissed the appeal on 07.01.2002, leading to the present second appeal. The courts below concurrently held that the plaintiff had admitted in cross-examination that the suit property was sold by her husband to the defendants' predecessor, and that the defendants had been in possession since 1960. The plaintiff failed to prove that the property was joint family property or that she was in possession within 12 years of the suit. The High Court framed a substantial question of law regarding the trial court's failure to deal with secondary evidence of an alleged admission in a previous suit. However, the appellants' counsel did not press this issue. The High Court upheld the concurrent findings, noting that the plaintiff's admission was the best evidence and that the suit was barred by limitation. The second appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - Concurrent findings of fact - The High Court declined to interfere with concurrent findings of fact recorded by both lower courts, as the plaintiff failed to prove joint family property and the suit was barred by limitation. The substantial question of law regarding secondary evidence was not pressed. (Paras 1-4) B) Evidence Act - Admission - Best Evidence - Section 17 - The plaintiff's admission in cross-examination that the suit property was sold by her husband was held to be the best evidence against her, and the courts below rightly relied on it. (Para 3) C) Limitation - Adverse Possession - Article 65 of Limitation Act, 1963 - The suit for possession based on title was dismissed as the plaintiff failed to prove possession within 12 years of the suit, and the defendants had been in possession since the sale deed in 1960. (Para 3)
Issue of Consideration
Whether the trial court erred in failing to deal with the question of production of secondary evidence, namely, an alleged admission of respondents' predecessor in his deposition in a previous suit.
Final Decision
Second Appeal dismissed with no order as to costs.
Law Points
- Admission of party is best evidence
- Concurrent findings of fact not interfered in second appeal unless perverse
- Burden of proof on plaintiff to prove joint family property
- Adverse possession requires clear and unequivocal possession for statutory period
