Case Note & Summary
The appeal arose from a partition suit filed by plaintiff Nos. 1 to 8 (respondent Nos. 1 to 8) against defendant No. 1 (appellant) regarding shares in suit properties. The trial court partially decreed the suit in 1987, granting shares to plaintiff Nos. 2 and 3 but denying shares to plaintiff Nos. 4 to 8. Defendant No. 1 appealed, and the first appellate court set aside the trial court's decree in 1994. The High Court initially allowed the second appeal in 1998 but was set aside by the Supreme Court in 2004 for not framing questions of law under Section 100 of the Code of Civil Procedure, 1908. On remand, the High Court framed four questions of law and, in 2009, held that all suit properties should be divided among defendant No. 1 and plaintiff Nos. 3 to 8, denying shares to plaintiff Nos. 1 and 2. Defendant No. 1 appealed to the Supreme Court. The legal issues were whether plaintiff Nos. 4 to 8, who did not appeal the trial court's decree, could claim relief in the second appeal, and whether the High Court framed questions of law or fact. The appellant argued that the second appeal was not tenable for plaintiff Nos. 4 to 8 and that the High Court's questions were factual. The respondents contended that in a partition suit, parties are interchangeable, and the High Court rightly interfered. The court analyzed precedents, holding that in partition suits, positions are interchangeable, and under Order XLI Rule 4 read with Order XLI Rule 33 of the Code of Civil Procedure, 1908, appellate courts can grant relief to non-appealing plaintiffs. It also noted that second appeals can address factual issues if findings are perverse. The court dismissed the appeal, upholding the High Court's judgment and the shares allocated.
Headnote
A) Civil Procedure - Partition Suit - Interchangeable Positions of Parties - Code of Civil Procedure, 1908, Order XLI Rule 4 and Order XLI Rule 33 - In a partition suit, plaintiffs and defendants stand on the same pedestal, and their positions are interchangeable, allowing a defendant to be transposed as a plaintiff and vice versa - Held that the appellate court can grant relief to non-appealing plaintiffs and make adverse orders against all defendants under Order XLI Rule 4 read with Order XLI Rule 33, so plaintiff Nos. 4 to 8 were entitled to relief in the second appeal despite not challenging the trial court's decree (Paras 12-14). B) Civil Procedure - Second Appeal - Questions of Law vs. Fact - Code of Civil Procedure, 1908, Section 100 - A second appeal can be entertained on a question of fact if findings are perverse due to non-consideration of relevant evidence, erroneous approach, or irrationality - The High Court framed questions of law after remand, and the Supreme Court found no error in this, as the findings were based on evidence and not perverse (Paras 15-16).
Issue of Consideration
Whether plaintiff Nos. 4 to 8, who did not challenge the trial court's decree denying them shares, are entitled to relief in the second appeal; whether the High Court framed questions of law or questions of fact in the second appeal
Final Decision
The Supreme Court dismissed the appeal, upholding the High Court's judgment dated 17th March 2009, which allowed the second appeal and decreed shares in suit properties among defendant No. 1 and plaintiff Nos. 3 to 8
Law Points
- In a partition suit
- the positions of plaintiff and defendant are interchangeable
- and each party stands on the same pedestal
- the appellate court can grant relief to non-appealing plaintiffs and make adverse orders against all defendants under Order XLI Rule 4 read with Order XLI Rule 33 of the Code of Civil Procedure
- 1908
- a second appeal can be entertained on a question of fact if findings are perverse due to non-consideration of relevant evidence or erroneous approach
