Case Note & Summary
The present second appeal under Section 100 of the Code of Civil Procedure, 1908, arises from a judgment and decree dated 29.03.2005 passed by the District and Sessions Judge, Fast Track Court, Jamkhandi, in R.A. No. 74/1996, which dismissed the appeal and confirmed the judgment and decree dated 21.06.1996 of the Civil Judge (Jr. Dn.), Jamkhandi, in O.S. No. 78/1992. The original plaintiff, Kallawwa Virupaxappa Banakar, filed a suit for partition and separate possession of the suit properties. The trial court decreed the suit, granting the plaintiff a share. The defendants appealed, but the lower appellate court dismissed the appeal, affirming the trial court's decree. The appellants, being the legal representatives of the deceased original plaintiff, filed the present second appeal. The High Court, after hearing the counsel for the appellants and perusing the records, found that the lower appellate court had considered all aspects, including limitation, adverse possession, and court fee, and had recorded concurrent findings of fact. The court held that no substantial question of law arose for consideration in the second appeal. Consequently, the appeal was dismissed at the stage of admission itself, confirming the decree for partition and separate possession.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The court held that the second appeal does not involve any substantial question of law as the findings of fact by the lower appellate court are concurrent and based on evidence. The appeal was dismissed at the stage of admission itself. (Para 1) B) Partition - Limitation - Adverse Possession - The suit for partition was not barred by limitation as the plaintiff was in joint possession. The plea of adverse possession by the defendants was not proved. (Para 1) C) Court Fee - Valuation - The court held that the court fee paid was proper and the suit was correctly valued. (Para 1)
Issue of Consideration
Whether the second appeal under Section 100 of the Code of Civil Procedure, 1908, raises any substantial question of law warranting interference with the concurrent findings of fact recorded by the courts below in a partition suit.
Final Decision
The High Court dismissed the second appeal at the stage of admission itself, holding that no substantial question of law arises for consideration. The judgment and decree of the lower appellate court were confirmed.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- concurrent findings of fact
- partition suit
- limitation
- adverse possession
- court fee
