Case Note & Summary
The respondent-plaintiff filed a suit for partition and separate possession of her half share in the suit schedule properties against the appellant-defendant. The trial court dismissed the suit, and the first appellate court confirmed that dismissal. The defendant then filed this regular second appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court noted that the appeal was filed in 2006 and came up for dictation of judgment in 2023. The court observed that the only ground urged by the appellant was that the courts below had not properly appreciated the evidence. However, the High Court held that in a second appeal, it cannot re-appreciate evidence unless there is a substantial question of law. The appellant failed to frame any substantial question of law, and the concurrent findings of fact were not shown to be perverse. Consequently, the appeal was dismissed, and the judgment and decree of the lower appellate court were confirmed.
Headnote
A) Civil Procedure - Regular Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court in a second appeal under Section 100 CPC can only interfere if there is a substantial question of law. Concurrent findings of fact by the trial court and first appellate court cannot be re-appreciated unless perverse or based on no evidence. Held that the appellant failed to demonstrate any substantial question of law, and the appeal was dismissed. (Paras 1-5)
Issue of Consideration
Whether the judgment and decree of the lower appellate court confirming the trial court's dismissal of the suit for partition and separate possession suffers from any substantial question of law warranting interference under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the regular second appeal, confirming the judgment and decree of the lower appellate court dated 12.01.2006 in R.A. No. 174/2004 and the trial court's judgment and decree dated 24.10.1997 in O.S. No. 227/1995.
Law Points
- Concurrent findings of fact
- Section 100 CPC
- No substantial question of law
- Partition suit
- Interference limited
Case Details
K.N. Nitish (for appellant), Bharathi M (for respondent)
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Nature of Litigation
Regular second appeal against concurrent findings in a partition suit.
Remedy Sought
Appellant-defendant sought to set aside the judgments and decrees of the trial court and first appellate court and to dismiss the suit.
Filing Reason
The appellant-defendant was aggrieved by the dismissal of her appeal by the first appellate court, which confirmed the trial court's dismissal of the partition suit.
Previous Decisions
The trial court (Civil Judge (Jr.Dn.) and JMFC, Koratagere) dismissed the suit on 24.10.1997. The first appellate court (II Additional District Judge, Tumkur) dismissed the appeal on 12.01.2006.
Issues
Whether the judgment and decree of the lower appellate court suffers from any substantial question of law warranting interference under Section 100 CPC.
Submissions/Arguments
The appellant argued that the courts below had not properly appreciated the evidence on record.
Ratio Decidendi
In a regular second appeal under Section 100 CPC, the High Court can only interfere if there is a substantial question of law. Concurrent findings of fact by the trial court and first appellate court cannot be re-appreciated unless they are perverse or based on no evidence. The appellant failed to demonstrate any substantial question of law, and therefore the appeal was dismissed.
Judgment Excerpts
The defendant has filed this appeal praying to set aside the judgment and decree dated 12.01.2006 passed by the II Additional District Judge, Tumkur in R.A. No. 174/2004 and also judgment and decree dated 24.10.1997 passed in O.S. No. 227/1995 on the file of the Civil Judge (Junior Division) and JMFC, Koratagere and prayed to dismiss the suit.
The only ground urged by the appellant is that the courts below have not properly appreciated the evidence on record. In a second appeal under Section 100 CPC, this Court cannot re-appreciate the evidence unless there is a substantial question of law. The appellant has not framed any substantial question of law. Hence, the appeal is dismissed.
Procedural History
The respondent-plaintiff filed O.S. No. 227/1995 seeking partition and separate possession. The trial court dismissed the suit on 24.10.1997. The plaintiff appealed in R.A. No. 174/2004, which was dismissed by the II Additional District Judge, Tumkur on 12.01.2006. The defendant then filed this regular second appeal under Section 100 CPC, which was dismissed by the High Court on 15.06.2023.
Acts & Sections
- Code of Civil Procedure, 1908: 100
