Case Note & Summary
The appellants, defendants 2 and 3 in O.S. No. 100/1991, filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 22.03.2010 passed by the Civil Judge (Senior Division), Khanapur, in Regular Appeal No. 20/2008 (old R.A. No. 20/1999), which affirmed the judgment and decree dated 15.12.1998 passed by the Civil Judge (Junior Division), Khanapur, in O.S. No. 100/1991. The suit was filed by the plaintiff (respondent No. 1) seeking partition and separate possession of joint family properties. The trial court decreed the suit, and the first appellate court confirmed the decree. The appellants, being defendants 2 and 3, filed the second appeal contending that the lower courts erred in their findings. The High Court, after hearing the counsel for the appellants and perusing the records, found that the first appellate court had recorded concurrent findings of fact. The court observed that no substantial question of law arose for consideration in the second appeal. Consequently, the appeal was dismissed at the stage of admission itself, upholding the concurrent findings of the courts below.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The court held that in a second appeal, the High Court cannot interfere with concurrent findings of fact unless there is a substantial question of law. The appellants failed to demonstrate any such question, and the appeal was dismissed. (Paras 1-5)
B) Partition - Joint Family Property - Suit for Partition - The suit was for partition and separate possession of joint family properties. The trial court decreed the suit, and the first appellate court confirmed the decree. The second appeal challenging these concurrent findings was dismissed. (Paras 1-5)
Issue of Consideration
Whether the judgment and decree passed by the first appellate court in a partition suit suffer from any substantial question of law warranting interference under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The second appeal was dismissed at the stage of admission, upholding the concurrent findings of the courts below.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- no substantial question of law
- partition suit
- joint family property
Case Details
2013 LawText (KAR) (02) 22
Regular Second Appeal No. 5496 of 2010 (PAR)
Sri Dinesh M. Kulkarni, A.A. Nandgadi, A.R. Nandgadi (for appellants); Sri B.M. Patil and H.N. Desai (for respondent No. 1 and respondent No. 3)
Shri Kedari Mashnu Gurav and Shri Ramchandra Mashnu Gurav
Shri Pandurang Mashnu Gurav, Shri Gangaram Rudrappa Nandgadkar (deceased, suit abated), and Shri Yeshwant Kedari Patil
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Nature of Litigation
Second appeal against concurrent findings in a partition suit.
Remedy Sought
Appellants sought to set aside the judgment and decree of the first appellate court and the trial court, and to dismiss the suit.
Filing Reason
Appellants challenged the concurrent findings of fact recorded by the lower courts in a suit for partition and separate possession of joint family property.
Previous Decisions
The trial court (Civil Judge, Junior Division, Khanapur) decreed the suit on 15.12.1998 in O.S. No. 100/1991. The first appellate court (Civil Judge, Senior Division, Khanapur) dismissed the appeal (R.A. No. 20/2008) on 22.03.2010, confirming the trial court's decree.
Issues
Whether the second appeal involves any substantial question of law under Section 100 CPC.
Submissions/Arguments
Appellants argued that the lower courts erred in their findings and that the judgment and decree should be set aside.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless a substantial question of law is involved. The appellants failed to raise any such question, and therefore the appeal was dismissed.
Judgment Excerpts
Defendants 2 and 3 in O.S.100/1991 on the file of the Principal Civil Judge (Jr.Dn.,), Khanapur, have filed this second appeal questioning the Judgment and decree passed by the Civil Judge (Senior Division) Khanapur in Regular Appeal No.20/2008 (Old R.A.No.20/1999) dated 22.03.2010 and the Judgment and the decree passed by the Civil Judge Junior Division, Khanapur in O.S. No.100/1991 dated 15.12.1998 and in the consequences the suit of the plaintiff be dismissed.
This Appeal coming for admission, this day, the Court delivered the following: J U D G M E N T
Procedural History
The suit O.S. No. 100/1991 was filed by the plaintiff (respondent No. 1) for partition and separate possession of joint family properties. The trial court decreed the suit on 15.12.1998. The defendants (appellants herein) filed Regular Appeal No. 20/2008 (old R.A. No. 20/1999) before the Civil Judge (Senior Division), Khanapur, which was dismissed on 22.03.2010, confirming the trial court's decree. Aggrieved, the defendants filed the present second appeal under Section 100 CPC before the High Court of Karnataka, Circuit Bench at Dharwad, which was dismissed on 21.02.2013.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
