Case Note & Summary
The appellant, defendant No.2, filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 29.11.2017 passed by the Senior Civil Judge and JMFC, Sira, in R.A.No.14/2016, which partly allowed the appeal and modified the judgment and decree dated 27.11.2015 passed by the Additional Civil Judge and JMFC, Sira, in O.S.No.98/2009. The suit was filed by the plaintiffs (respondents herein) seeking partition and separate possession of their alleged share in the suit schedule properties. The plaintiffs claimed that the properties were ancestral joint family properties of one Lakkanna and his sons, and that they, being daughters of Kamanna (son of Lakkanna), were entitled to a share. The defendant No.2 (appellant) contended that there was a prior partition in the family and that the plaintiffs were not in possession and had been ousted for more than 12 years, thus the suit was barred by limitation. The Trial Court decreed the suit granting 1/5th share to each plaintiff. The First Appellate Court modified the decree, granting 1/6th share to each plaintiff. The High Court framed substantial questions of law regarding the correctness of the concurrent findings on joint family status and ouster. The High Court held that the courts below failed to properly appreciate the evidence on record, particularly the fact that the plaintiffs did not prove that the properties were joint family properties at the time of suit, and that the defendant had established ouster and adverse possession. The High Court allowed the appeal, set aside the judgments of the courts below, and dismissed the suit.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The High Court framed substantial questions of law regarding the correctness of concurrent findings on joint family status and ouster - Held that the courts below failed to properly appreciate evidence on prior partition and ouster, warranting interference under Section 100 CPC (Paras 1-10). B) Hindu Law - Partition - Joint Family Property - Burden of Proof - The plaintiffs claimed share in ancestral properties but failed to prove that the properties were joint family properties at the time of suit - Held that the initial burden lies on the plaintiff to show that the property is joint and that they are entitled to a share (Paras 11-20). C) Hindu Law - Ouster - Limitation - Adverse Possession - The defendant claimed ouster and adverse possession for over 12 years - The courts below did not properly consider the evidence of ouster and separate possession - Held that if a co-owner is in exclusive possession for a long period, it may amount to ouster, and the claim for partition may be barred by limitation (Paras 21-30).
Issue of Consideration
Whether the courts below were justified in granting a share to the plaintiffs in the suit schedule properties without proper proof of joint family status and without considering the effect of prior partition and ouster?
Final Decision
Appeal allowed. Judgments and decrees of the Trial Court and First Appellate Court set aside. Suit of the plaintiffs dismissed.
Law Points
- Partition suit
- burden of proof
- joint family property
- ouster
- limitation
- adverse possession
- Section 100 CPC
- substantial question of law
