Case Note & Summary
The case involves a second appeal under Section 100 of the Code of Civil Procedure, 1908, filed by the original defendants (appellants) against the judgment and decree dated 21st July 2015 passed by the learned District Judge-2, Nashik, in Civil Appeal No.70 of 2010. The first appellate court had allowed the appeal filed by the respondent no.1 (original plaintiff) and set aside the trial court's judgment and decree dated 22nd February 2007 in Regular Civil Suit No.10 of 2007, which had dismissed the plaintiff's suit for partition. The plaintiff, Shivaji Vitoba Bodke, claimed that he and the defendant no.1, Punja Rama Bodke (since deceased, represented by his legal heirs), lived in a joint family and that the suit properties (Old Gat No.63, 67, and 35) were ancestral properties of the common ancestor, Ramji Janku Bodke. After Ramji's death, the properties were mutated in the name of the plaintiff's father, Vithoba Ramji Bodke, as Karta. The plaintiff alleged that the defendant no.1, being the eldest son of Vithoba, took possession of the properties and denied the plaintiff's share. The defendant no.1 contended that the properties were not joint family properties but were his self-acquired properties purchased from his own income. The trial court, after considering the evidence, dismissed the suit, holding that the plaintiff failed to prove that the properties were joint family properties and that the defendant had acquired them separately. The first appellate court reversed this finding and decreed partition. The High Court, in the second appeal, framed the substantial question of law as to whether the first appellate court was justified in reversing the trial court's judgment without framing substantial questions of law and without proper appreciation of evidence. The High Court held that the first appellate court's judgment was perverse and not based on evidence. It noted that the appellate court had not framed any substantial question of law as required under Section 100 CPC and had merely re-appreciated the evidence to reach a different conclusion. The High Court restored the trial court's decree dismissing the suit, thereby allowing the second appeal.
Headnote
A) Civil Procedure Code - Second Appeal - Substantial Question of Law - Section 100 CPC - The first appellate court allowed the appeal and decreed partition without framing any substantial question of law, which is mandatory under Section 100 CPC. The High Court held that the appellate court's judgment was perverse and set it aside, restoring the trial court's decree dismissing the suit. (Paras 1-10) B) Partition - Joint Family Property - Presumption of Jointness - Burden of Proof - The plaintiff claimed that the suit properties were ancestral joint family properties. The trial court found that the plaintiff failed to prove that the properties were joint family properties and that the defendant had acquired separate properties. The first appellate court reversed this finding without proper reasoning. The High Court held that the burden was on the plaintiff to prove jointness and that the appellate court's conclusion was not based on evidence. (Paras 3-8) C) Evidence - Mutation Entries - Evidentiary Value - Mutation entries are only for fiscal purposes and do not confer title. The trial court correctly held that mutation entries in the name of the defendant did not prove exclusive ownership. The first appellate court erred in relying on mutation entries to conclude jointness. (Para 6)
Issue of Consideration
Whether the first appellate court was justified in reversing the trial court's judgment and decree without framing substantial questions of law and without properly appreciating the evidence on record.
Final Decision
The High Court allowed the second appeal, set aside the judgment and decree of the first appellate court dated 21st July 2015, and restored the trial court's judgment and decree dated 22nd February 2007 dismissing the suit. The civil application also stands disposed of.
Law Points
- Substantial question of law
- Section 100 CPC
- Partition suit
- Joint family property
- Mutation entry
- Presumption of jointness
- Burden of proof
- Reversal of findings by first appellate court
