Case Note & Summary
The appellants, who were the plaintiffs in a partition suit, filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree of the First Appellate Court which confirmed the dismissal of their suit by the trial court. The suit was for partition and separate possession of alleged joint family properties. The trial court dismissed the suit on the ground that the plaintiffs failed to prove that the suit properties were joint family properties. The First Appellate Court, on appeal, concurred with the findings of the trial court and dismissed the appeal. The appellants then approached the High Court in second appeal. The High Court, after hearing the counsel for the appellants, noted that the appeal was filed under Section 100 CPC and that the appellants had not framed any substantial question of law. The court observed that the findings of the courts below were concurrent and based on appreciation of evidence. The High Court held that in the absence of any substantial question of law, the second appeal was not maintainable. Consequently, the appeal was dismissed. The court did not find any perversity or illegality in the impugned judgment and decree.
Headnote
A) Civil Procedure Code - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court in a second appeal can only interfere if there is a substantial question of law. Concurrent findings of fact by the trial court and first appellate court cannot be re-appreciated unless shown to be perverse or based on no evidence. (Para 1-2) B) Hindu Law - Partition - Joint Family Property - Burden of Proof - In a suit for partition, the plaintiff must prove that the property is joint family property. Mere allegation without evidence is insufficient. The courts below concurrently held that the plaintiffs failed to discharge this burden. (Para 1-2) C) Civil Procedure Code - Second Appeal - Section 100 CPC - Interference with Concurrent Findings - The High Court will not interfere with concurrent findings of fact unless there is a substantial error of law or the findings are perverse. The appellants did not raise any substantial question of law. (Para 1-2)
Issue of Consideration
Whether the judgment and decree passed by the First Appellate Court in a partition suit suffers from any perversity or illegality warranting interference 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 and the concurrent findings of fact did not warrant interference.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- concurrent findings of fact
- partition suit
- burden of proof
- joint family property
- interference by High Court
