Case Note & Summary
This is a first defendant's appeal against the judgment and decree dated 09.04.2010 passed in R.A. No.255/2002 on the file of 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 on the file of 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 the suit schedule properties claiming that they are joint family properties. The defendants contested the suit contending that the properties are not joint family properties and that the suit is barred by limitation. The trial court decreed the suit in favor of the plaintiff, which was confirmed by the first appellate court. The High Court, in this second appeal, framed a substantial question of law regarding whether the suit was barred by limitation. The Court held that the concurrent findings of fact by the courts below were based on evidence and not perverse. The Court noted that possession of a co-owner is possession on behalf of all co-owners and that the defendant failed to prove ouster or adverse possession. Therefore, the suit for partition was not barred by limitation. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure Code - Second Appeal - Section 100 CPC - Substantial Question of Law - Concurrent findings of fact cannot be interfered with in second appeal unless perverse or based on no evidence - Held that the High Court cannot re-appreciate evidence in second appeal (Para 1). B) Hindu Law - Partition - Joint Family Property - Co-owner's possession - Possession of one co-owner is possession on behalf of all co-owners - Suit for partition not barred by limitation unless ouster or adverse possession is proved - Held that mere long possession by a co-owner does not constitute adverse possession against other co-owners (Para 1). C) Limitation Act, 1963 - Article 65 - Adverse Possession - Burden of proof on defendant to prove ouster - Held that the defendant failed to prove ouster or adverse possession, hence suit for partition is within time (Para 1).
Issue of Consideration
Whether the suit for partition and separate possession was barred by limitation and whether the properties were joint family properties.
Final Decision
The High Court dismissed the appeal with no order as to costs, confirming the concurrent findings of the courts below.
Law Points
- Partition suit
- Joint family property
- Co-owner possession
- Limitation
- Adverse possession
- Hindu Succession Act
- 1956
- Section 100 CPC
- Substantial question of law
