Case Note & Summary
The case pertains to a second appeal filed under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 09.01.1996 passed in R.A.No.61/88 by the Prl. Civil Judge, Dharwad, which dismissed the appeal and confirmed the trial court's decree for partition. The appellants were the defendants in the original suit, and the respondents were the plaintiffs. The suit was for partition of joint family properties. The trial court decreed the suit, and the first appellate court confirmed it. In the second appeal, the appellants contended that the courts below erred in holding that the suit property was joint family property and that the plaintiffs had proved their share. The High Court, after hearing the parties, held that the findings of fact recorded by the courts below were concurrent and based on evidence. The court noted that no substantial question of law arose for consideration in the second appeal. The appeal was dismissed, and the decree for partition was upheld. The court observed that the plaintiffs had discharged the burden of proving that the property was joint family property, and the defendants failed to rebut the presumption of jointness. The judgment reiterates the limited scope of interference in a second appeal under Section 100 CPC.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - In a second appeal, the High Court cannot interfere with concurrent findings of fact unless a substantial question of law is involved. The court held that the findings of the courts below regarding the nature of the suit property and the shares of the parties were based on evidence and did not give rise to any substantial question of law. (Paras 1-10) B) Hindu Law - Partition - Joint Family Property - Burden of Proof - The plaintiffs, who claimed a share in the suit property, successfully proved that the property was joint family property. The defendants failed to rebut the presumption of jointness. The court upheld the concurrent findings that the plaintiffs were entitled to a share. (Paras 5-8)
Issue of Consideration
Whether the judgment and decree of the lower appellate court confirming the trial court's decree for partition calls for interference in a second appeal under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the second appeal, upholding the judgment and decree of the lower appellate court which confirmed the trial court's decree for partition.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- no substantial question of law
- partition suit
- joint family property
- burden of proof
