Case Note & Summary
The case involves a second appeal arising from a partition suit. The original plaintiffs, Ratnakar Pralhad Deoras (since deceased, represented by legal heirs) and Ashok Janardhan Bidwai, filed Special Civil Suit No. 376 of 1993 seeking partition and separate possession of a property situated at Ganeshpeth, Nagpur. The plaintiffs claimed that the suit property was ancestral and that they were entitled to a 1/3rd share. The trial court dismissed the suit on 20.07.2007, holding that the plaintiffs failed to prove their title. The lower appellate court, in Regular Civil Appeal No. 450 of 2007, dismissed the appeal on 22.07.2011, concurring with the trial court. The plaintiffs then filed the present second appeal under Section 100 of the Code of Civil Procedure, 1908. The key legal issue was whether the concurrent findings of fact were perverse and liable to be interfered with. The appellants argued that the lower appellate court ignored crucial documentary evidence, including a sale deed dated 22.03.1948 in favour of their predecessor and mutation entries showing their names. The respondent No. 5 supported the findings. The High Court examined the evidence and found that the lower appellate court's conclusion that the plaintiffs failed to prove title was perverse, as it was contrary to the documentary evidence on record. The court noted that the sale deed and mutation entries clearly established the plaintiffs' predecessor's ownership. The court held that once title is proved, the burden shifts to the defendants to show ouster or adverse possession, which they failed to do. Consequently, the High Court allowed the second appeal, set aside the judgments of the courts below, and decreed the suit for partition and separate possession, declaring the plaintiffs entitled to a 1/3rd share. The court directed the appointment of a Commissioner for partition.
Headnote
A) Civil Procedure - Second Appeal - Interference with Concurrent Findings - Section 100 Code of Civil Procedure, 1908 - The High Court can interfere with concurrent findings of fact if they are perverse, based on no evidence, or based on irrelevant material. In this case, the lower appellate court's finding that plaintiffs failed to prove title was perverse as it ignored documentary evidence including sale deed and mutation entries showing plaintiffs' predecessor's ownership. Held that the finding was not supported by evidence and was liable to be set aside (Paras 5-10). B) Property Law - Partition - Proof of Title - Burden of Proof - The plaintiffs, claiming 1/3rd share in suit property, must prove their title. In this case, the plaintiffs produced sale deed dated 22.03.1948 in favour of their predecessor and mutation entries showing their names. The lower appellate court erroneously held that plaintiffs failed to prove title despite this evidence. Held that once title is established, the burden shifts to defendants to show ouster or adverse possession (Paras 6-9). C) Property Law - Partition - Entitlement to Share - The plaintiffs proved that the suit property was ancestral and they were entitled to 1/3rd share. The trial court and lower appellate court dismissed the suit on erroneous grounds. Held that the plaintiffs are entitled to a decree for partition and separate possession of their 1/3rd share (Paras 11-12).
Issue of Consideration
Whether the findings of the courts below that the plaintiffs failed to prove their title and entitlement to partition are perverse and liable to be interfered with in second appeal.
Final Decision
Second appeal allowed. Judgments of trial court and lower appellate court set aside. Suit for partition and separate possession decreed. Plaintiffs entitled to 1/3rd share. Commissioner appointed for partition.
Law Points
- Partition suit
- Title
- Burden of proof
- Perverse findings
- Interference in second appeal
- Section 100 CPC
