Case Note & Summary
The appellant, Sri Masood Ahamed Baig, filed a Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) against the judgment and decree dated 15.07.2019 passed in R.A. No.15048/2018 by the Vth Additional District and Sessions Judge, Bengaluru Rural District, Devanahalli, which dismissed his appeal and confirmed the judgment and decree dated 08.01.2018 passed in O.S. No.430/2007 by the Senior Civil Judge and JMFC, Devanahalli. The appellant had originally filed a suit for partition and separate possession of a 1/5th share in the suit property, claiming that it was joint family property. The respondents, who were the defendants in the suit, contested the claim, asserting that the property was not joint family property and that the appellant had no title or possession. The trial court, after considering the evidence, dismissed the suit, holding that the appellant failed to prove his title and possession and that the suit was barred by limitation. The first appellate court concurred with these findings and dismissed the appeal. In the second appeal, the appellant argued that the courts below had erred in appreciating the evidence and that substantial questions of law arose. However, the High Court, after hearing the counsel for the appellant, found that the findings of the courts below were concurrent and based on proper appreciation of evidence. The court noted that no substantial question of law arose for consideration in the second appeal, as the appellant had not made out any ground to interfere with the concurrent findings. The High Court dismissed the appeal, upholding the decisions of the lower courts.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The High Court dismissed the regular second appeal as no substantial question of law arose. The courts below had concurrently held that the plaintiff failed to prove his title and possession over the suit property. The findings were based on appreciation of oral and documentary evidence, which cannot be re-appreciated in a second appeal. (Paras 1-4) B) Property Law - Partition - Burden of Proof - The plaintiff, claiming 1/5th share in the suit property, failed to discharge the burden of proving that the property was joint family property and that he was in possession. The trial court and first appellate court correctly held that the suit was barred by limitation and that the plaintiff had not established his title. (Paras 2-4) C) Limitation - Adverse Possession - The defendants set up a plea of adverse possession, but the courts below did not base their decision solely on that plea. The plaintiff's suit was dismissed primarily for failure to prove title and possession, and the concurrent findings were upheld. (Para 4)
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 CPC.
Final Decision
The Regular Second Appeal is dismissed. The judgment and decree of the lower appellate court confirming the trial court's dismissal of the suit are upheld.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- concurrent findings of fact
- partition suit
- limitation
- adverse possession
- burden of proof
