Case Note & Summary
The case involves a second appeal under Section 100 of the Code of Civil Procedure, 1908, filed by the defendant-appellant against the judgment and decree of the I Additional District Judge, D.K. Mangalore, in R.A.No.12/2008 dated 05.09.2009, which dismissed the appeal and confirmed the judgment and decree of the I Additional Civil Judge (Sr.Dn), Mangalore, in O.S.No.19/2001 dated 04.12.2007. The suit was for partition of the suit schedule property, wherein the plaintiff claimed a 1/6th share. The bone of contention was whether the tenancy rights in respect of the suit property were joint family properties and liable for partition. The trial court and the first appellate court concurrently held that the tenancy rights were not joint family properties and dismissed the suit. The appellant-defendant challenged these findings in the second appeal. The High Court, after hearing the parties, found that the findings of fact were concurrent and not perverse, and no substantial question of law arose for consideration. The court noted that the appellant failed to demonstrate any error in the concurrent findings. Accordingly, the second appeal was dismissed, confirming the judgments of the lower courts.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court considered whether the appeal involved any substantial question of law. It held that the findings of fact by the lower appellate court were concurrent and not perverse, and no substantial question of law arose for consideration. (Paras 1-10)
B) Hindu Law - Joint Family Property - Tenancy Rights - Partition - The core issue was whether tenancy rights in the suit property were joint family properties. The court held that the tenancy rights were not proved to be joint family properties and thus not liable for partition. The concurrent findings of the courts below were upheld. (Paras 3-10)
Issue of Consideration
Whether the tenancy rights in respect of the suit schedule property are joint family properties and liable for partition?
Final Decision
The second appeal is dismissed. The judgment and decree of the I Additional District Judge, D.K. Mangalore, in R.A.No.12/2008 dated 05.09.2009, confirming the judgment and decree of the I Additional Civil Judge (Sr.Dn), Mangalore, in O.S.No.19/2001 dated 04.12.2007, are upheld. No order as to costs.
Law Points
- Tenancy rights
- Joint Hindu Family
- Partition
- Section 100 CPC
- Second appeal
- Substantial question of law
Case Details
2019 LawText (KAR) (01) 120
Sri K Chandranath Ariga (for appellants), Sri K Chandrashekar (for R-1(a)), Sri Anandrama K (for R-5 & 6)
Sri Mahabala Babu Kukyan (since dead by LRs: Smt. Vinaya Mahabal Kukian, Smt. Harinakshi V Sanil, Smt. Nalinakshi S. Kotian, Sri Ashit Mahabal Kukian)
Smt. Rathi K Poojarthi (since dead by LRs: Harishchandra K Amin, Smt. Gulabi, Smt. Sheshamma, Koti Kotian, Smt. Latha, Sanju)
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Nature of Litigation
Second appeal against dismissal of partition suit
Remedy Sought
Appellant sought to set aside the concurrent judgments of the trial court and first appellate court dismissing the suit for partition
Filing Reason
Appellant claimed that tenancy rights in suit property were joint family properties and liable for partition
Previous Decisions
Trial court dismissed suit; first appellate court dismissed appeal and confirmed trial court judgment
Issues
Whether the tenancy rights in respect of the suit schedule property are joint family properties and liable for partition?
Whether the second appeal involves any substantial question of law?
Submissions/Arguments
Appellant argued that the tenancy rights are joint family properties and should be partitioned.
Respondents supported the concurrent findings that tenancy rights are not joint family properties.
Ratio Decidendi
The concurrent findings of fact by the courts below that the tenancy rights in the suit property are not joint family properties and not liable for partition are not perverse and do not give rise to any substantial question of law under Section 100 CPC.
Judgment Excerpts
This appeal is directed against the Judgment and decree passed by the I Additional District Judge, D.K. Mangalore, in R.A.No.12/2008 dated 05.09.2009 on which date appeal came to be dismissed, wherein the Judgment and decree dated 04.12.2007 passed by the I Additional Civil Judge (Sr.Dn), Mangalore in O.S.No.19/2001 came to be confirmed.
The bone of contention between the parties in this case is tenancy and its legal effects in respect of a joint Hindu family.
Procedural History
The suit O.S.No.19/2001 was filed before the I Additional Civil Judge (Sr.Dn), Mangalore, which was dismissed on 04.12.2007. The plaintiff appealed to the I Additional District Judge, D.K. Mangalore, in R.A.No.12/2008, which was dismissed on 05.09.2009. The defendant then filed the present second appeal under Section 100 CPC before the High Court of Karnataka.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
