Case Note & Summary
The appellant, Champa Poojari, filed a Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC), challenging the judgment and decree dated 22.09.2011 passed by the Senior Civil Judge at Kundapura in R.A.No.64/2005, which confirmed the judgment and decree dated 25.05.2005 passed by the II Additional Civil Judge (Jr.Dn.) and JMFC, Kundapura in O.S.336/1997. The appellant was the plaintiff in the original suit, seeking partition and separate possession of certain properties. The respondents were the defendants, who were his sisters and their children. The trial court dismissed the suit, and the first appellate court confirmed that dismissal. In the second appeal, the appellant contended that the courts below erred in not decreeing the suit and that the findings were perverse. The High Court, after hearing the counsel for the appellant and the respondents, found that no substantial question of law arose for consideration. The court noted that the appellant had failed to prove that the suit properties were joint family properties and that he was in possession. The concurrent findings of fact by the courts below were based on evidence and were not perverse. Therefore, the High Court dismissed the appeal, upholding the judgments of the lower courts.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court in a second appeal 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. Held that the appellant failed to raise any substantial question of law. (Paras 1-10) B) Hindu Law - Partition - Joint Family Property - Burden of Proof - In a suit for partition, the plaintiff must prove that the property is joint family property and that he is in possession. The appellant-plaintiff failed to discharge this burden. Held that the courts below rightly dismissed the suit. (Paras 5-10)
Issue of Consideration
Whether the judgment and decree of the courts below are perverse and call for interference in a second appeal under Section 100 CPC?
Final Decision
The High Court dismissed the Regular Second Appeal, upholding the judgments of the trial court and the first appellate court.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- concurrent findings of fact
- partition suit
- burden of proof
- joint family property
- possession
