Case Note & Summary
This is a first defendant's second appeal under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 09.04.2010 passed in R.A. No.255/2002 by the Presiding Officer, Fast Track Court, KGF, dismissing the appeal and confirming the judgment and decree dated 11.10.2002 passed in O.S.No.424/1995 by the II Addl. Civil Judge (Jr.Dn.), K.G.F. The suit was filed by the plaintiff (respondent No.1) for partition and separate possession of his share in the suit schedule properties, claiming that the properties were joint family properties and that he was in joint possession. The first defendant (appellant) contended that the properties were his self-acquired properties and that the suit was barred by limitation. The trial court decreed the suit, holding that the properties were joint family properties and that the plaintiff was entitled to a share. The first defendant appealed to the lower appellate court, which dismissed the appeal, confirming the trial court's findings. In the second appeal, the High Court framed a substantial question of law regarding limitation and the nature of the property. The court held that the concurrent findings of fact by the courts below were not perverse and that no substantial question of law arose. The court noted that the plaintiff was in joint possession of the property, and therefore, the suit for partition was not barred by limitation. The court also upheld the finding that the property was joint family property. Consequently, the second appeal was dismissed, confirming the decree for partition.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The court considered whether the suit was barred by limitation and whether the property was joint family property. Held that no substantial question of law arises as concurrent findings of fact are not perverse. (Paras 1-5) B) Hindu Law - Partition - Joint Family Property - Limitation - A suit for partition is not barred by limitation if the plaintiff is in joint possession of the property. The court upheld the finding that the plaintiff remained in joint possession and the property was joint family property. (Paras 2-4) C) Civil Procedure - Preliminary Decree - Final Decree - A co-parcener can seek partition even after a preliminary decree if the property remains undivided. The court dismissed the appeal confirming the lower appellate court's judgment. (Para 5)
Issue of Consideration
Whether the suit for partition is barred by limitation and whether the property is joint family property or self-acquired property of the first defendant.
Final Decision
Second appeal dismissed. The judgment and decree of the lower appellate court confirming the trial court's decree for partition are upheld.
Law Points
- Partition suit
- Joint family property
- Limitation
- Joint possession
- Co-parcener
- Preliminary decree
- Section 100 CPC
- Substantial question of law
