Case Note & Summary
The second appeal was filed by the defendants against the concurrent judgments of the trial court and first appellate court in a suit for declaration and recovery of possession with alternative relief of partition. The plaintiff, Veera Gounder, claimed that the suit property measuring 1 acre 38 cents and 88 cents in S.F.Nos. 363/1 and 363/4 originally belonged to his brother Chinnaiya Gounder under a registered sale deed dated 01.04.1954. The plaintiff alleged that his brother intended to purchase only the eastern 40 cents, but the deed mistakenly described the entire extent. After a partition between the plaintiff and his brother on 25.09.1978, the plaintiff was allotted the eastern 40 cents. The remaining 98 cents were sold to one Ramasamy, who later sold to the first defendant through his father, the second defendant. The plaintiff claimed that he and Ramasamy jointly dug a well on the eastern portion, and that the defendants had no right to the entire well. The defendants denied the plaintiff's title and claimed that the entire property belonged to them through an oral partition 50 years ago. The trial court dismissed the suit for declaration but granted a preliminary decree for partition of 40 cents on the eastern side with a half share in the well. The first appellate court confirmed this decree. In the second appeal, the High Court held that no substantial question of law arose, as the concurrent findings of fact were based on evidence and not perverse. The court noted that the plaintiff had proved his possession and that the defendants failed to establish adverse possession. The appeal was dismissed, and the preliminary decree was confirmed.
Headnote
A) Civil Procedure Code - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The appellants failed to show any perversity or error of law in the judgments of the trial court and first appellate court. (Paras 1-22) B) Property Law - Partition - Declaration of Title - Recovery of Possession - The plaintiff sought declaration and recovery of possession or alternatively partition of 40 cents on eastern side with half share in well. The trial court dismissed declaration but granted preliminary decree for partition, which was confirmed by the first appellate court. The High Court upheld the concurrent findings that the plaintiff proved his possession and entitlement to the eastern 40 cents. (Paras 2-22) C) Limitation - Adverse Possession - The defendants' claim of adverse possession was rejected as they failed to prove ouster or exclusive possession for the statutory period. The courts below found that the plaintiff and his predecessor were in possession of the eastern 40 cents. (Paras 10-22)
Issue of Consideration
Whether the second appeal under Section 100 CPC raises any substantial question of law warranting interference with the concurrent findings of fact recorded by the courts below.
Final Decision
The second appeal is dismissed. The judgment and decree of the first appellate court in A.S.No.136 of 2002 dated 29.10.2003 confirming the preliminary decree in O.S.No.99/1993 dated 27.10.1995 are confirmed. No costs. Connected miscellaneous petitions are closed.
Law Points
- Section 100 CPC
- second appeal
- concurrent findings of fact
- substantial question of law
- partition
- declaration of title
- recovery of possession
- limitation
- adverse possession
- joint family property
- oral partition
- burden of proof
