Case Note & Summary
The appellant, Monakka Shinde, filed a suit (O.S. 370/2004) for reopening of partition, declaration, and injunction against her sons, Maruti Shinde and Ramesh Shinde. She claimed that a previous partition between her sons in 1995 did not include certain joint family properties, including a house property and a shop. The trial court decreed the suit, but the first appellate court (Principal District Judge, Belgaum) allowed the appeal (R.A. 117/2010) and set aside the decree. Aggrieved, the appellant filed a second appeal under Section 100 CPC. The High Court framed a substantial question of law: whether the first appellate court's judgment was perverse and not based on proper appreciation of evidence. The High Court found that the first appellate court had misappreciated the evidence and failed to consider that the plaintiff was not a party to the earlier partition. The court held that the properties in question were joint family properties and that the plaintiff was entitled to a share. The High Court allowed the appeal, set aside the first appellate court's judgment, and restored the trial court's decree.
Headnote
A) Civil Procedure Code - Second Appeal - Substantial Question of Law - Section 100 CPC - The appeal under Section 100 CPC is maintainable only if a substantial question of law arises. The court framed a substantial question of law regarding the correctness of the first appellate court's judgment. (Para 1)
B) Hindu Law - Partition - Reopening of Partition - Joint Family Property - The plaintiff sought reopening of partition on the ground that certain joint family properties were not included in the earlier partition. The trial court decreed the suit, but the first appellate court reversed it. The High Court allowed the appeal, holding that the first appellate court's judgment was perverse and not based on proper appreciation of evidence. (Paras 2-10)
C) Res Judicata - Applicability - The principle of res judicata does not apply as the plaintiff was not a party to the earlier partition proceedings. (Para 5)
Issue of Consideration
Whether the first appellate court was justified in reversing the trial court's decree for reopening of partition and declaration without considering the evidence on record?
Final Decision
The High Court allowed the appeal, set aside the judgment and decree of the first appellate court, and restored the judgment and decree of the trial court.
Law Points
- Section 100 CPC
- Partition
- Res Judicata
- Joint Family Property
- Reopening of Partition
Case Details
2017 LawText (KAR) (10) 3
R.S.A. NO.5385/2012 (PAR, DEC & INJ)
Sri. Raghavendra Srivatsa, Sri. Prashant F Goudar, Sri. Veeresh R Budihal (for appellant); Sri. Sachin S Magadum (for R1), Sri. Gautam Shridhar B Baradwaj (for R2)
Maruti Shinde and Ramesh Shinde
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Nature of Litigation
Second appeal against the judgment of the first appellate court in a suit for reopening of partition, declaration, and injunction.
Remedy Sought
The appellant (plaintiff) sought to set aside the first appellate court's judgment and restore the trial court's decree allowing reopening of partition.
Filing Reason
The appellant was aggrieved by the first appellate court's reversal of the trial court's decree which had allowed her suit for reopening of partition.
Previous Decisions
The trial court (I Addl. Civil Judge (Sr.Dn), Belgaum) decreed the suit on 07.01.2010. The first appellate court (Principal District Judge, Belgaum) allowed the appeal on 13.01.2012 and set aside the trial court's decree.
Issues
Whether the first appellate court's judgment was perverse and not based on proper appreciation of evidence?
Whether the plaintiff was entitled to reopening of partition on the ground that joint family properties were not included in the earlier partition?
Submissions/Arguments
The appellant argued that the first appellate court misappreciated the evidence and failed to consider that the plaintiff was not a party to the earlier partition.
The respondents argued that the first appellate court correctly reversed the trial court's decree.
Ratio Decidendi
The first appellate court's judgment was perverse as it did not properly appreciate the evidence on record. The plaintiff was not a party to the earlier partition, and the properties in question were joint family properties, entitling the plaintiff to a share and reopening of partition.
Judgment Excerpts
This appeal under Section 100 of C.P.C. is by the plaintiff in the suit, O.S. 370/2004...
The said appeal, having been allowed and the judgment and decree of the trial Court set aside on 13.01.2012, the plaintiff, aggrieved by the said judgment, has filed this second appeal.
Procedural History
The appellant filed O.S. 370/2004 for reopening of partition, declaration, and injunction. The trial court decreed the suit on 07.01.2010. Respondent No.1 appealed to the District Court (R.A. 117/2010), which allowed the appeal on 13.01.2012, setting aside the trial court's decree. The appellant then filed this second appeal under Section 100 CPC.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Section 100, Order XLII Rule 1
