Case Note & Summary
The original plaintiff, B. Jayamma, filed a suit for partition of suit schedule property claiming to be the wife of late Bheemaiah and daughter of late Chikkabasavaiah. The trial court dismissed the suit after finding that the plaintiff failed to prove her relationship with the propositus and the alleged adoption. The first appellate court confirmed the dismissal. The plaintiff's legal representatives filed a second appeal under Section 100 CPC. The High Court examined the evidence and found that the courts below had appreciated the oral and documentary evidence, including the testimony of PW-1 to PW-3 and exhibits P-1 to P-18 for the plaintiff, and DW-1 to DW-3 and exhibits D-1 for the defendants. The High Court held that the findings of fact were concurrent and not perverse, and no substantial question of law arose. The appeal was dismissed.
Headnote
A) Civil Procedure Code - Second Appeal - Substantial Question of Law - Section 100 CPC - Concurrent findings of fact cannot be interfered with unless perverse or based on no evidence - The court held that the findings of the courts below regarding the plaintiff's failure to prove her relationship with the propositus and the alleged adoption were based on proper appreciation of evidence and not perverse, hence no substantial question of law arose (Paras 1-10).
B) Hindu Law - Adoption - Proof of Adoption - Burden on person alleging adoption - The court held that the plaintiff failed to discharge the burden of proving adoption as required under Hindu law, and the concurrent findings of the courts below on this issue were not open to challenge in second appeal (Paras 5-10).
Issue of Consideration
Whether the judgment and decree of the lower appellate court confirming the trial court's dismissal of the suit for partition suffers from any substantial question of law warranting interference under Section 100 CPC.
Final Decision
The High Court dismissed the second appeal, confirming the judgment and decree of the lower appellate court and the trial court.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- concurrent findings of fact
- perversity
- partition suit
- burden of proof
- relationship
- adoption
Case Details
2019 LawText (KAR) (07) 46
Sri K N Nitish for Sri K V Narasimhan (for appellants), Sri M R Rajagopal (for respondents 1 & 2)
Smt B Jayamma (since dead by LRs: Smt B Sujatha, Sri B Jagannath, Smt B Pushpalatha)
Smt Dhakshayini @ Latha, Smt Smitha, Sri Ningegowda, Sri Mahadevu
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Nature of Litigation
Second appeal against dismissal of partition suit
Remedy Sought
Appellants sought to set aside the judgment and decree of the lower appellate court and to decree the suit for partition
Filing Reason
The original plaintiff claimed partition of suit schedule property as wife of late Bheemaiah and daughter of late Chikkabasavaiah; the suit was dismissed by trial court and confirmed by first appellate court
Previous Decisions
Trial court dismissed O.S.No.326/89 on 25.01.1994; first appellate court dismissed R.A.No.47/1994 on 16.04.2004 confirming the trial court's decree
Issues
Whether the concurrent findings of fact by the courts below are perverse or based on no evidence?
Whether any substantial question of law arises in the second appeal under Section 100 CPC?
Submissions/Arguments
Appellants argued that the findings of the courts below were erroneous and against the weight of evidence.
Respondents supported the concurrent findings and argued that no substantial question of law arises.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The plaintiff failed to prove her relationship and adoption, and the findings of the courts below were based on proper appreciation of evidence.
Judgment Excerpts
Appeal is directed against the Judgment and decree dated 16.04.2004 passed by the Additional Civil Judge (Sr.Dn), Srirangapatna, wherein appeal was dismissed and Judgment and decree dated 25.01.1994 passed by the Munsiff, Srirangapatna, in O.S.No.326/89 came to be confirmed.
In order to avoid confusion and overlapping, the parties are referred in accordance with the rankings and status held by them before the trial court.
Procedural History
Original suit O.S.No.326/1989 filed by B. Jayamma for partition was dismissed by the Munsiff, Srirangapatna on 25.01.1994. The first appeal R.A.No.47/1994 was dismissed by the Additional Civil Judge (Sr.Dn), Srirangapatna on 16.04.2004. The present second appeal R.S.A.No.630/2006 was filed under Section 100 CPC against the said dismissal.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
