Case Note & Summary
The case involves a Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908, filed by the appellants (defendants) against the judgment and decree dated 24.04.2010 passed in R.A. No.75/2007 by the Senior Civil Judge at Aland, which confirmed the judgment and decree dated 30.06.2007 in O.S. No.47/2005 passed by the Civil Judge (Jr.Dn.) at Aland. The original plaintiff, Revansiddappa (since deceased, represented by legal representatives), filed a suit for partition and separate possession of his 1/3rd share in the suit schedule properties, claiming that the properties were joint family properties of himself and his two brothers, Sidlingayya and Gurusiddappa. The defendants contested the suit, alleging that there was a prior partition in 1965 and that the plaintiff had been ousted from the joint family. The trial court decreed the suit, granting 1/3rd share to the plaintiff, which was affirmed by the first appellate court. The High Court, in the second appeal, framed substantial questions of law regarding the maintainability of the suit, the nature of the property, and the effect of ouster. The court held that the concurrent findings of fact by the courts below were based on proper appreciation of evidence and did not suffer from perversity. The court noted that the defendants failed to prove the alleged prior partition or ouster of the plaintiff. The appeal was dismissed, and the decree of the first appellate court was confirmed. The court also directed that the parties shall bear their own costs.
Headnote
A) Civil Procedure - Regular Second Appeal - Section 100 CPC - Substantial Question of Law - The court held that the second appeal under Section 100 CPC is confined to substantial questions of law and cannot be used to re-appreciate concurrent findings of fact unless perverse. The appellant failed to demonstrate any perversity or error of law in the concurrent findings of the courts below. (Paras 1-10) B) Hindu Law - Partition - Joint Family Property - Burden of Proof - The court held that the plaintiff, being a coparcener, is entitled to a share in joint family property. The burden to prove ouster or adverse possession lies on the party asserting it. The appellant's claim of ouster was not supported by evidence, and the concurrent findings of fact that the property was joint family property were upheld. (Paras 5-9) C) Limitation - Adverse Possession - Ouster - The court held that mere long possession of a coparcener does not constitute ouster or adverse possession against other coparceners. There must be clear evidence of denial of title and hostile possession. The appellant failed to establish ouster, and the suit was held to be within limitation. (Paras 6-8)
Issue of Consideration
Whether the judgment and decree of the first appellate court in R.A. No.75/2007 suffered from perversity or raised substantial questions of law warranting interference under Section 100 CPC.
Final Decision
The High Court dismissed the Regular Second Appeal, confirming the judgment and decree dated 24.04.2010 passed in R.A. No.75/2007 by the Senior Civil Judge at Aland. The parties were directed to bear their own costs.
Law Points
- Section 100 CPC limits second appeal to substantial questions of law
- concurrent findings of fact not to be interfered with unless perverse
- burden of proof on party alleging ouster and adverse possession
- Hindu Succession Act 1956 Section 8 devolution of property
- partition suit maintainability.
