Case Note & Summary
The case involves a Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 10.11.2014 passed by the VII Additional District and Sessions Judge, Belgaum at Chikodi, in R.A. No.194/2012. The lower appellate court had allowed the appeal and set aside the judgment and decree dated 04.08.2012 passed by the Principal Senior Civil Judge, Athani, in O.S. No.107/1998, which had partly decreed the suit for partition and separate possession. The appellant, Smt. Mallawwa, was the defendant in the original suit filed by the plaintiff, Smt. Chandrabai (since deceased, represented by her legal representatives), seeking partition and separate possession of her share in the joint family property. The trial court had partly decreed the suit, but the lower appellate court modified the decree, granting the plaintiff a 1/5th share. The appellant challenged this in the second appeal, primarily arguing that the plaintiff had been ousted from the property and that the appellant had acquired title by adverse possession. The High Court, after hearing the counsel, found that the findings of fact recorded by the courts below were concurrent and not perverse. The court noted that the appellant failed to raise any substantial question of law as required under Section 100 CPC. The court held that the claim of ouster and adverse possession was not proved, and the plaintiff, being a coparcener, was entitled to a share. Consequently, the second appeal was dismissed, confirming the decree of the lower appellate court.
Headnote
A) Civil Procedure - 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 appellant failed to demonstrate any substantial question of law. (Paras 1-5) B) Hindu Law - Partition - Joint Family Property - Plaintiff's Share - The plaintiff, being a coparcener, is entitled to a share in the joint family property. The courts below correctly granted 1/5th share to the plaintiff. (Paras 2-4) C) Property Law - Adverse Possession - Ouster - Burden of Proof - The appellant's claim of ouster and adverse possession was not proved. The burden lies on the person asserting ouster to prove it, which was not discharged. (Paras 3-4)
Issue of Consideration
Whether the second appeal under Section 100 of CPC raises any substantial question of law warranting interference with the concurrent findings of fact recorded by the courts below regarding the share of the plaintiff in the joint family property and the claim of ouster and adverse possession.
Final Decision
The High Court dismissed the Regular Second Appeal, confirming the judgment and decree of the lower appellate court dated 10.11.2014 in R.A. No.194/2012, which granted the plaintiff a 1/5th share in the joint family property.
Law Points
- Section 100 CPC
- Second appeal
- Substantial question of law
- Concurrent findings of fact
- Partition
- Joint family property
- Adverse possession
- Ouster
