Case Note & Summary
This regular second appeal was filed by the 1st defendant, Sri Janardhan S/o Shivappa Naik, challenging the judgment and decree dated 15.07.2006 passed in R.A.No.83/2001 by the Civil Judge (Sr.Dn.), Honavar, which modified the preliminary decree dated 27.09.1995 passed in O.S.No.106/1993 by the Munsiff, Kumta. The original suit was filed by Smt. Susheela W/o Gangadhar Naik (since deceased, represented by LRs) seeking partition and separate possession of her 1/3rd share in the suit property. The plaintiff claimed that the suit property was joint family property of herself, her husband (defendant No.2), and the 1st defendant (her brother-in-law). The 1st defendant contested the suit, claiming that the property was his self-acquired property and that there was an oral partition in 1985, after which he became exclusive owner. The trial court decreed the suit preliminarily, granting 1/3rd share to the plaintiff, 1/3rd to defendant No.2, and 1/3rd to the 1st defendant. On appeal by the 1st defendant, the lower appellate court modified the decree, granting 1/3rd share to the plaintiff and 2/3rd share to the 1st defendant, holding that defendant No.2 had no share as he had already been given his share in a prior partition. The 1st defendant then filed this second appeal under Section 100 CPC. The High Court, after hearing counsel, found that the appeal did not involve any substantial question of law. The court noted that both courts below had concurrently found that the suit property was joint family property and that the plaintiff was entitled to a share. The appellant's claim of exclusive ownership based on oral partition was not proved by cogent evidence. The High Court held that the findings of fact recorded by the lower appellate court were not perverse and did not warrant interference. Accordingly, the appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Regular Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court held that in a regular second appeal, interference with concurrent findings of fact is not warranted unless the findings are perverse or based on no evidence. The appellant failed to demonstrate any substantial question of law. (Paras 1-10) B) Partition - Burden of Proof - Oral Partition - The court held that the burden of proving an oral partition and exclusive title lies on the party asserting it. The appellant-defendant failed to prove that the suit property was his self-acquired property or that there was a prior partition. (Paras 5-8) C) Evidence Act - Appreciation of Evidence - Concurrent Findings - The court observed that both the trial court and the first appellate court concurrently found that the suit property was joint family property and that the plaintiff was entitled to a share. The High Court declined to re-appreciate evidence in second appeal. (Paras 6-9)
Issue of Consideration
Whether the judgment and decree of the lower appellate court modifying the preliminary decree in a partition suit suffers 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 regular second appeal, holding that no substantial question of law arose for consideration. The judgment and decree of the lower appellate court were confirmed. No order as to costs.
Law Points
- Section 100 CPC limits second appeal to substantial questions of law
- concurrent findings of fact not interfered with unless perverse
- burden of proof on party claiming exclusive title
- oral partition must be proved by cogent evidence
