Case Note & Summary
The appellants, plaintiffs in a partition suit, filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 27.2.2008 passed by the Principal District Judge, Mandya, in R.A.No.174/2005, which confirmed the trial court's decree in O.S.No.39/1997. The suit was filed for partition and separate possession of suit schedule properties. The propositus of the family was Patel Neelegowda, who had two sons: Patel Venkategowda and Puttegowda. The plaintiffs are the children of Puttegowda, while the defendants are the children of Venkategowda. The plaintiffs claimed that the suit properties were in joint possession of Venkategowda and Puttegowda. The defendants, however, contended that there was a prior partition in the year 1947. The trial court decreed the suit, and the first appellate court confirmed that decree. In the second appeal, the High Court found that the first appellate court had not properly considered the evidence on record regarding the alleged prior partition. The High Court held that the substantial question of law was whether the courts below erred in decreeing the suit without considering the evidence of prior partition. The High Court set aside the judgments of both lower courts and remanded the matter to the first appellate court for fresh disposal, directing it to consider the evidence regarding the prior partition and pass appropriate orders. The appeal was allowed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - Whether courts below erred in decreeing partition without considering evidence of prior partition - Held that the first appellate court failed to appreciate the evidence on record regarding the alleged prior partition, warranting remand for fresh consideration (Paras 2-4).
Issue of Consideration
Whether the trial court and first appellate court erred in decreeing the suit for partition without properly considering the defendants' evidence of a prior partition in 1947.
Final Decision
Appeal allowed. Judgment and decree of the first appellate court set aside. Matter remanded to the first appellate court for fresh disposal, directing it to consider the evidence regarding the prior partition and pass appropriate orders. No order as to costs.
Law Points
- Partition
- Prior partition
- Burden of proof
- Remand
- Section 100 CPC
Case Details
2014 LawText (KAR) (12) 2
Sri Sangamesh R.B. for appellants, Smt. K.K. Thayamma for respondents 2-4, 6 & 8
Prakash, Ramesha, Sarojamma
Thimmamma, Devamma, Krishnegowda, Venkatappa, Swamygowda, Timmamma, Jayamma, Thayamma, Prema, Srinivas
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Nature of Litigation
Civil suit for partition and separate possession of joint family properties.
Remedy Sought
Plaintiffs sought partition and separate possession of suit schedule properties.
Filing Reason
Plaintiffs claimed that suit properties were in joint possession of the family and sought partition.
Previous Decisions
Trial court decreed the suit; first appellate court confirmed the decree.
Issues
Whether the courts below erred in decreeing the suit for partition without properly considering the defendants' evidence of a prior partition in 1947.
Submissions/Arguments
Appellants (plaintiffs) argued that the suit properties were joint family properties and sought partition.
Respondents (defendants) contended that there was a prior partition in 1947.
Ratio Decidendi
The first appellate court failed to consider the evidence on record regarding the alleged prior partition, which constitutes a substantial question of law under Section 100 CPC, warranting remand for fresh consideration.
Judgment Excerpts
This appeal is filed by the plaintiffs against the judgment and decree passed by the Prl. District Judge, Mandya, in R.A.No.174/2005, dated 27th February 2008.
Plaintiffs filed suit in O.S.No.39/1997 before the Prl.Civil Judge (Sr.Dn.) & JMFC, Srirangapatna, for partition and separate possession of suit schedule properties.
The propositus of the family was one Patel Neelegowda. He had two sons viz., Patel Venkategowda and Puttegowda.
According to the plaintiffs, the suit schedule properties are in joint possession of Venkategowda and Puttegowda, But, according to defendants, there was prior partition in the year 1947.
After hearing, the trial Court decreed the suit.
Procedural History
Plaintiffs filed O.S.No.39/1997 before the Prl.Civil Judge (Sr.Dn.) & JMFC, Srirangapatna, for partition. Trial court decreed the suit. Defendants appealed in R.A.No.174/2005 before the Prl. District Judge, Mandya, which confirmed the decree. Plaintiffs then filed the present second appeal under Section 100 CPC before the High Court of Karnataka.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
