Case Note & Summary
The present second appeal arises from a partition suit filed by the respondent-plaintiff, Smt. Ashwathamma, against the appellants-defendants, who are the legal representatives of the original defendant No.1, Krishnappa. The suit sought partition and separate possession of the plaintiff's share in the ancestral property. The trial court dismissed the suit, holding that the plaintiff failed to prove her share and that the suit was barred by limitation. The Appellate Court reversed this decision and decreed the suit, leading to the present appeal. The High Court framed a substantial question of law regarding whether the Appellate Court's judgment was perverse and based on misreading of evidence. The Court noted that the Appellate Court did not properly consider the evidence regarding the plaintiff's possession and the issue of limitation, particularly the defendant's claim of adverse possession. The High Court set aside the Appellate Court's judgment and remanded the matter for fresh consideration, directing the Appellate Court to re-evaluate the evidence and decide the case afresh.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The High Court examined whether the Appellate Court's decree was perverse and based on misreading of evidence - Held that the Appellate Court failed to consider the issue of limitation and adverse possession raised by the defendant, and the judgment was set aside (Paras 1-10).
B) Limitation - Partition Suit - Co-owner's Possession - Ouster - The plaintiff claimed partition of ancestral property, but the defendant contended that the plaintiff was out of possession for over 12 years and had lost right by adverse possession - Held that the Appellate Court did not properly address the limitation issue, and the matter requires reconsideration (Paras 5-8).
Issue of Consideration
Whether the Appellate Court was justified in decreeing the suit for partition without properly considering the evidence on record and the issue of limitation?
Final Decision
The High Court allowed the appeal, set aside the judgment and decree of the Appellate Court, and remanded the matter to the Appellate Court for fresh consideration. The Appellate Court is directed to re-evaluate the evidence and decide the case afresh, particularly on the issue of limitation and adverse possession.
Law Points
- Partition suit
- limitation
- adverse possession
- co-owner
- ouster
- Section 100 CPC
- substantial question of law
Case Details
2022 LawText (KAR) (08) 5
R.S.A.No.87 of 2010 (PAR)
Sri T.K. Rajagopala (for appellants), Sri Abhinav.R (for respondent)
Krishnappa (since deceased) represented by his LRs: Smt. Muniyamma, Smt. Parvathamma, Smt. Manjula, Smt. Anandamma, Nanjundegowda, Ashwathegowda, Murthy
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Nature of Litigation
Second appeal against the judgment and decree of the Appellate Court in a partition suit.
Remedy Sought
The appellants (defendants) sought to set aside the Appellate Court's decree which had allowed the plaintiff's suit for partition.
Filing Reason
The Appellate Court reversed the trial court's dismissal and decreed the suit, allegedly without proper consideration of evidence and limitation.
Previous Decisions
The trial court (Civil Judge (Sr.Dn) & JMFC, Devanahalli) dismissed the suit in O.S.29/2006 on 29.11.2007. The Appellate Court (Prl. District Judge, Bangalore Rural District) allowed the appeal in R.A.No.70/2008 on 15.10.2009, decreeing the suit.
Issues
Whether the Appellate Court's judgment is perverse and based on misreading of evidence?
Whether the suit for partition is barred by limitation and whether the defendant has acquired title by adverse possession?
Submissions/Arguments
Appellants argued that the Appellate Court failed to consider the issue of limitation and the defendant's claim of adverse possession.
Respondent argued that the Appellate Court correctly decreed the suit based on evidence.
Ratio Decidendi
The Appellate Court's judgment was set aside because it failed to properly consider the issue of limitation and the defendant's claim of adverse possession, which are crucial in a partition suit. The High Court held that the Appellate Court's decree was perverse and based on misreading of evidence, warranting remand for fresh consideration.
Judgment Excerpts
The captioned second appeal is filed by the defendant No.1 questioning the judgment and decree of the Appellate Court wherein the Appellate Court has decreed the suit.
The High Court set aside the Appellate Court's judgment and remanded the matter for fresh consideration.
Procedural History
The plaintiff filed O.S.29/2006 for partition before the Civil Judge (Sr.Dn) & JMFC, Devanahalli, which was dismissed on 29.11.2007. The plaintiff appealed in R.A.No.70/2008 before the Prl. District Judge, Bangalore Rural District, which was allowed on 15.10.2009, decreeing the suit. The defendant No.1 filed the present second appeal (R.S.A.No.87/2010) before the High Court of Karnataka, which was heard and reserved on 25.08.2022 and judgment pronounced on 26.08.2022.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
