Case Note & Summary
The appellants, legal representatives of the original plaintiff N.L. Manjunatha, filed a Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 31.10.2008 passed by the Civil Judge (Sr. Dn.) & JMFC, Nagamangala in R.A. No.11/2008, which confirmed the judgment and decree dated 12.12.2007 passed by the Civil Judge (Jr. Dn.) & JMFC, Nagamangala in O.S. No.153/1999. The original plaintiff had filed a suit for partition and separate possession of the suit property claiming it to be joint family property. The defendant, B.L. Ananda @ B.L. Anatha Shankara, contended that the property was his self-acquired property and not liable for partition. The trial court dismissed the suit, holding that the plaintiff failed to prove that the property was joint family property. The lower appellate court confirmed this finding. In the second appeal, the appellants argued that the courts below erred in not considering the evidence properly and that the property was ancestral. The respondent supported the concurrent findings. The High Court, after hearing both sides, held that no substantial question of law arose for consideration. The court observed that the concurrent findings of fact were based on evidence and were not perverse. The court noted that the plaintiff had not discharged the burden of proving that the suit property was joint family property. The appeal was dismissed, confirming the dismissal of the suit for partition.
Headnote
A) Civil Procedure Code - Regular Second Appeal - Section 100 CPC - Substantial Question of Law - The court reiterated that a second appeal lies only on a substantial question of law and not on findings of fact. The concurrent findings of the courts below that the suit property was self-acquired by the defendant and not joint family property were based on evidence and not perverse. Hence, no interference was warranted. (Paras 1-10) B) Hindu Law - Partition - Joint Family Property - Burden of Proof - The plaintiff failed to prove that the suit property was ancestral or joint family property. The defendant successfully established that the property was his self-acquired property. The courts below correctly dismissed the suit for partition. (Paras 5-9)
Issue of Consideration
Whether the judgment and decree of the lower appellate court confirming the trial court's dismissal of the suit for partition calls for interference in a regular second appeal under Section 100 of the Code of Civil Procedure, 1908?
Final Decision
The Regular Second Appeal is dismissed. The judgment and decree of the lower appellate court dated 31.10.2008 in R.A. No.11/2008 confirming the trial court's judgment and decree dated 12.12.2007 in O.S. No.153/1999 are confirmed. No order as to costs.
Law Points
- Section 100 CPC limits second appeal to substantial questions of law
- concurrent findings of fact not interfered with unless perverse
- burden of proof on plaintiff to prove joint family property
- self-acquired property not liable for partition
