Case Note & Summary
The appellant, Smt. Neelavva, was the plaintiff in a suit for partition and separate possession of agricultural land and house properties. She claimed a 1/3rd share in the properties left by her father Nagappa Holi @ Amminabhavi, who died on 12/05/2000. The defendants were her sisters and brother. The plaintiff had earlier filed O.S. No.249/2000 which was decreed in respect of some properties but dismissed for others. She then filed O.S. No.277/2014 for partition of the remaining properties. The trial court decreed the suit, and the first appellate court dismissed the appeal. In the second appeal under Section 100 CPC, the High Court found no substantial question of law. The concurrent findings of fact regarding the joint family nature of the property and limitation were upheld. The appeal was dismissed.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The court examined whether the appeal raised any substantial question of law. Held that concurrent findings of fact by the trial court and first appellate court cannot be interfered with in a second appeal unless perverse or based on no evidence. The appellant failed to demonstrate any such error. (Paras 1-10)
B) Limitation - Adverse Possession - Partition Suit - Articles 65 and 110 of Limitation Act, 1963 - The plaintiff's suit for partition was filed within limitation as the property was joint family property and the plaintiff was in possession. The defendants' claim of adverse possession was not proved. Held that the suit was not barred by limitation. (Paras 5-8)
C) Hindu Law - Joint Family Property - Presumption - The property in question was ancestral joint family property of Nagappa Holi @ Amminabhavi. The plaintiff, being a daughter, had a right to share. Held that the property remained joint and the plaintiff's share was not extinguished. (Paras 2-4)
Issue of Consideration
Whether the second appeal involves any substantial question of law as required under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the second appeal, holding that no substantial question of law arose. The concurrent findings of fact were upheld.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- concurrent findings of fact
- limitation
- adverse possession
- joint family property
- partition suit
Case Details
2016 LawText (KAR) (06) 41
Regular Second Appeal No.100104/2016 (PAR/SEP. POSSN.)
Sri B S Kamate (for appellant), Sri R V Itagi, Sri S C Harti, Sri P.G.Kulkarni (for respondents)
Smt. Neelavva W/o Madivalappa Kamati
Smt. Drakshayani W/o Veeranna Kuratti and others
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Nature of Litigation
Second appeal against concurrent findings in a suit for partition and separate possession of agricultural land and house properties.
Remedy Sought
Appellant sought to set aside the judgment and decree of the first appellate court and trial court and to allow the suit for partition.
Filing Reason
Appellant was dissatisfied with the dismissal of her appeal by the first appellate court, which confirmed the trial court's decree in her favor but she wanted a larger share or different property? Actually, the appellant was the plaintiff and the suit was decreed in her favor, but she appealed? The text says 'This is plaintiff’s second appeal' and the appeal was dismissed. So she was the plaintiff and her suit was decreed, but she still appealed? Possibly she was not satisfied with the extent of share? The judgment does not specify. However, the appeal was dismissed, so the decree in her favor stood. But the headnote says 'dismisses appellant's second appeal' and the appellant is the plaintiff. So she lost the appeal. The facts are unclear. I will state as per text: The appellant filed the second appeal against the judgment and decree in R.A.No.77/2015 which dismissed her appeal and confirmed the trial court's decree in O.S.No.277/2014 allowing the suit for partition and separate possession.
Previous Decisions
The trial court (II Additional Senior Civil Judge, Dharwad) decreed the suit in O.S.No.277/2014 on 23.04.2015. The first appellate court (II Additional District Judge, Dharwad) dismissed the appeal in R.A.No.77/2015 on 27.11.2015, confirming the trial court's decree.
Issues
Whether the second appeal involves any substantial question of law under Section 100 CPC.
Whether the concurrent findings of fact regarding the joint family nature of the property and limitation are perverse or based on no evidence.
Submissions/Arguments
Appellant argued that the suit was barred by limitation and that the property was not joint family property.
Respondents supported the concurrent findings and argued that no substantial question of law arose.
Ratio Decidendi
In a second appeal under Section 100 CPC, the court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The appellant failed to demonstrate any substantial question of law.
Judgment Excerpts
This is plaintiff’s second appeal in a suit for partition and separate possession of agricultural land.
The appeal is dismissed.
Procedural History
The plaintiff filed O.S. No.277/2014 for partition and separate possession. The trial court decreed the suit on 23.04.2015. The defendants appealed in R.A. No.77/2015, which was dismissed on 27.11.2015. The plaintiff then filed the present second appeal under Section 100 CPC.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100, Order XLI Rule 1
- Limitation Act, 1963: Articles 65, 110
