Case Note & Summary
The appellant, defendant No.6 in a partition suit, filed a second appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) challenging the judgment and decree dated 09.06.2017 passed by the III Additional District and Sessions Judge, Bengaluru Rural District, sitting at Anekal, in R.A.No.5029/2015. The lower appellate court had allowed the appeal filed by the plaintiff-respondents and set aside the judgment and decree dated 14.01.2015 of the Senior Civil Judge and JMFC, Anekal, in O.S.No.88/2013, which had dismissed the suit for partition. The suit was filed by the respondents (plaintiffs) seeking partition and separate possession of their share in the suit property, claiming it to be ancestral joint family property. The appellant-defendant No.6 contended that he had acquired title by adverse possession. The trial court dismissed the suit, holding that the plaintiffs had not proved the property to be joint family property and that the defendant had perfected title by adverse possession. On appeal, the lower appellate court reversed this finding, holding that the plaintiffs had established the property as joint family property and that the defendant had failed to prove adverse possession. In the second appeal, the High Court examined whether any substantial question of law arose. The court noted that the lower appellate court had reappreciated the evidence and recorded findings of fact, which were not perverse. The High Court held that no substantial question of law was involved and dismissed the appeal, upholding the decree for partition.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court in a second appeal cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence - The court found no substantial question of law arising in the appeal as the lower appellate court had correctly appreciated the evidence and reversed the trial court's findings (Paras 1-10). B) Hindu Law - Partition - Joint Family Property - Suit for partition of ancestral property - The plaintiff must prove that the property is joint family property - In this case, the plaintiff succeeded in proving that the suit property was ancestral joint family property and that the defendant's claim of adverse possession was not established (Paras 3-8). C) Limitation - Adverse Possession - Burden of Proof - The defendant claiming adverse possession must prove ouster and hostile possession for over 12 years - The trial court's finding of adverse possession was reversed by the lower appellate court as the defendant failed to prove the necessary elements (Paras 5-7).
Issue of Consideration
Whether the judgment and decree of the lower appellate court reversing the trial court's dismissal of the suit for partition is perverse and suffers from substantial error of law?
Final Decision
The High Court dismissed the second appeal, confirming the judgment and decree of the lower appellate court which decreed the suit for partition.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- concurrent findings of fact
- partition suit
- joint family property
- adverse possession
- limitation
- burden of proof
