Case Note & Summary
The Regular Second Appeal was filed by the 1st defendant, Sadashiv S/o Balagaouda Patil, against the judgment and decree dated 11.11.2013 passed in RA No.33/2012 by the Senior Civil Judge, Hukkeri, which dismissed the appeal on the ground of delay as well as on merits, thereby confirming the judgment and decree dated 16.09.2011 passed in O.S. No.199/2009 by the Civil Judge, Sankeshwar, decreeing the suit for partition. The plaintiff, Rajeshwari W/o Vilas Sankapal, had filed the suit for partition and separate possession of the suit schedule properties, claiming that they were ancestral properties and that she was entitled to a 1/3rd share. The trial court decreed the suit declaring the plaintiff entitled to 1/3rd share and separate possession by metes and bounds. The first appellate court dismissed the appeal. The High Court, while admitting the appeal, heard the matter and found that the findings of fact recorded by both courts below were concurrent and did not suffer from any perversity. The court held that no substantial question of law arose for consideration under Section 100 of the Code of Civil Procedure, 1908, and accordingly dismissed the appeal with no order as to costs.
Headnote
A) Civil Procedure Code - Regular Second Appeal - Section 100 CPC - Substantial Question of Law - The appeal was filed by the 1st defendant against the concurrent findings of the courts below decreeing partition in favour of the plaintiff. The High Court held that no substantial question of law arises for consideration as the findings of fact regarding the ancestral nature of the suit properties and the plaintiff's share are concurrent and not perverse. (Paras 1-3)
B) Hindu Law - Partition - Ancestral Property - The plaintiff, daughter of the propositus, claimed 1/3rd share in the ancestral properties. The courts below decreed the suit, and the High Court upheld the same, noting that the first appellate court had dismissed the appeal both on delay and merits. (Paras 2-3)
Issue of Consideration
Whether the judgment and decree of the first appellate court confirming the trial court's decree for partition and separate possession in favour of the plaintiff gives rise to any substantial question of law under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The Regular Second Appeal is dismissed. The judgment and decree dated 11.11.2013 passed in RA No.33/2012 on the file of the Senior Civil Judge, Hukkeri, confirming the judgment and decree dated 16.09.2011 passed in O.S. No.199/2009 on the file of the Civil Judge, Sankeshwar, are confirmed. No order as to costs.
Law Points
- Partition
- Ancestral Property
- Concurrent Findings of Fact
- Substantial Question of Law
- Section 100 CPC
- Regular Second Appeal
- Dismissal of Appeal
Case Details
2015 LawText (KAR) (09) 14
Regular Second Appeal No.100498 of 2014 (PAR)
Sri. Sachin S Magadum (for appellant), Sri. Dinesh M Kulkarni (for respondent 1)
Sadashiv S/o Balagaouda Patil
Rajeshwari W/o Vilas Sankapal, Mahadev S/o Bhimagouda Patil, Ramagouda S/o Bhimagouda Patil
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Nature of Litigation
Regular Second Appeal against concurrent findings in a partition suit.
Remedy Sought
The appellant (1st defendant) sought to set aside the judgment and decree of the first appellate court which confirmed the trial court's decree for partition and separate possession in favour of the plaintiff.
Filing Reason
The appellant challenged the concurrent findings of the courts below decreeing partition of ancestral properties.
Previous Decisions
The trial court (Civil Judge, Sankeshwar) decreed the suit in O.S. No.199/2009 on 16.09.2011, declaring the plaintiff entitled to 1/3rd share. The first appellate court (Senior Civil Judge, Hukkeri) dismissed the appeal (RA No.33/2012) on 11.11.2013 on the ground of delay as well as on merits.
Issues
Whether the concurrent findings of fact by the courts below in a partition suit give rise to any substantial question of law under Section 100 of CPC.
Submissions/Arguments
The appellant contended that the first appellate court erred in dismissing the appeal both on delay and merits.
The respondent supported the concurrent findings and argued that no substantial question of law arises.
Ratio Decidendi
In a Regular Second Appeal under Section 100 of CPC, the High Court can only interfere if there is a substantial question of law. Concurrent findings of fact, unless perverse, do not give rise to a substantial question of law. The first appellate court's dismissal of the appeal on delay and merits does not warrant interference.
Judgment Excerpts
This is a 1st defendant's Regular Second Appeal against the judgment and decree dated 11.11.2013 made in RA No.33/2012 on the file of the Senior Civil Judge, Hukkeri, dismissing the appeal on the ground of delay as well as on merits, confirming the judgment and decree of the trial court dated 16.09.2011 made in O.S. No.199/2009, on the file of the Civil Judge, Sankeshwar, decreeing the suit of the plaintiff declaring that the plaintiff is entitled to 1/3rd share in the suit schedule properties and separate possession by metes and bounds.
Procedural History
The plaintiff filed O.S. No.199/2009 for partition and separate possession before the Civil Judge, Sankeshwar, which was decreed on 16.09.2011. The 1st defendant appealed to the Senior Civil Judge, Hukkeri, in RA No.33/2012, which was dismissed on 11.11.2013 on the ground of delay as well as on merits. The 1st defendant then filed the present Regular Second Appeal No.100498/2014 before the High Court of Karnataka, Dharwad Bench, which was dismissed on 22.09.2015.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
