Case Note & Summary
The case involves a Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, by the defendants (appellants) against the judgment and decree dated 12.07.2002 passed by the Principal District Judge, Dharwad, in R.A. No.102/1989, which dismissed their appeal and confirmed the judgment and decree dated 31.03.1980 passed by the Principal Civil Judge & JMFC, Dharwad, in O.S. No.46/1976. The original suit was filed by the plaintiff (since deceased, represented by legal representatives) seeking partition and separate possession of his share in the joint family properties. The trial court decreed the suit, and the first appellate court confirmed the decree. The defendants challenged the concurrent findings in the second appeal. The High Court, after hearing the parties, held that no substantial question of law arose for consideration. The court observed that the findings of fact recorded by the lower courts were based on evidence and were not perverse. The appeal was dismissed, and the decree for partition was upheld. The court also noted that the second appeal under Section 100 CPC is confined to substantial questions of law and cannot be used to re-appreciate evidence.
Headnote
A) Civil Procedure Code - Second Appeal - Section 100 CPC - Substantial Question of Law - The court reiterated that in a second appeal, the High Court 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 perverse or based on no evidence. (Paras 1-10) B) Hindu Law - Partition - Joint Family Property - Burden of Proof - The plaintiff claimed a share in joint family properties. The courts below held that the properties were joint family properties and the plaintiff was entitled to a share. The High Court found no error in the concurrent findings. (Paras 2-10)
Issue of Consideration
Whether the judgment and decree of the lower appellate court suffer from any substantial question of law warranting interference under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the second appeal, confirming the judgment and decree of the lower appellate court. No substantial question of law was found to exist.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- substantial question of law
- partition suit
- joint family property
- burden of proof
