High Court of Karnataka Dismisses Second Appeal in Partition Suit — Concurrent Findings of Fact Not Interfered With. Suit for Partition and Separate Possession Dismissed as Plaintiff Failed to Prove Joint Family Property and Possession Within Limitation.

High Court: Karnataka High Court Bench: BENGALURU

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2026-05-18 20:06:14

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Case Note & Summary

The appellant, Sri N. Umesha, filed a second appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) against the concurrent judgments of the trial court and the first appellate court dismissing his suit for partition and separate possession. The suit, O.S. No. 4/2009, was filed before the Senior Civil Judge and Prl. JMFC, Tarikere, seeking partition of the suit schedule property claiming it to be joint family property. The trial court dismissed the suit on 12.09.2014, and the first appellate court in R.A. No. 82/2014 confirmed the dismissal on 12.10.2017. The appellant contended that the courts below erred in not properly appreciating the evidence and that substantial questions of law arose. The respondents, who are the defendants, supported the concurrent findings. The High Court, after hearing the counsel, held that no substantial question of law arises as the findings are based on appreciation of evidence and are not perverse. The court noted that the plaintiff failed to prove that the suit property is joint family property and that he was in possession within 12 years of filing the suit, which is essential for a partition suit. The second appeal was dismissed, confirming the dismissal of the suit.

Headnote

A) Civil Procedure Code - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court in a second appeal can only interfere if there is a substantial question of law. Concurrent findings of fact based on appreciation of evidence cannot be re-appreciated unless perverse or based on no evidence. (Paras 1-2)

B) Hindu Law - Partition - Joint Family Property - Burden of Proof - The plaintiff must prove that the suit property is joint family property and that he is in possession within 12 years of filing the suit. Failure to prove possession leads to dismissal on limitation. (Paras 3-5)

C) Limitation Act, 1963 - Article 65 - Suit for Partition - Possession - The plaintiff must prove possession within 12 years prior to the suit. If the plaintiff is not in possession, the suit is barred by limitation. (Paras 4-5)

Issue of Consideration

Whether the concurrent findings of the trial court and first appellate court dismissing the suit for partition and separate possession suffer from any perversity or error of law warranting interference under Section 100 CPC.

Final Decision

The second appeal is dismissed. The concurrent findings of the trial court and first appellate court are confirmed. No order as to costs.

Law Points

Second appeal under Section 100 CPC
concurrent findings of fact
substantial question of law
partition suit
limitation
adverse possession
joint family property

Case Details

2024 LawText (KAR) (06) 12

R.S.A. No.9/2018 (PAR)

2024-06-14

H.P. Sandesh

Sri A. Madhusudhana Rao (for appellant), Sri Narasimha Prasad S.D. (for R4), Sri Chandrashekar P. Patil (for R1-R3)

Sri N. Umesha

Smt. Bhagyamma @ Bhagamma, Smt. Radhamma, Smt. Thayamma, Smt. Bhagamma

Nature of Litigation

Second appeal against concurrent dismissal of suit for partition and separate possession.

Remedy Sought

Appellant sought partition of suit schedule property claiming it to be joint family property.

Filing Reason

Appellant aggrieved by concurrent findings of trial court and first appellate court dismissing his suit.

Previous Decisions

Trial court dismissed O.S. No.4/2009 on 12.09.2014; first appellate court dismissed R.A. No.82/2014 on 12.10.2017.

Issues

Whether the concurrent findings of fact are perverse or suffer from any error of law? Whether the suit is barred by limitation as the plaintiff failed to prove possession within 12 years?

Submissions/Arguments

Appellant argued that the courts below erred in not properly appreciating the evidence and that substantial questions of law arise. Respondents supported the concurrent findings and argued that no interference is warranted.

Ratio Decidendi

In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The plaintiff in a partition suit must prove that the suit property is joint family property and that he is in possession within 12 years of filing the suit; failure to do so results in dismissal on limitation.

Judgment Excerpts

This second appeal is filed against the concurrent finding of dismissal of suit filed in O.S.No.4/2009 dated 12.09.2014 and an appeal filed in R.A.No.82/2014 dated 12.10.2017. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.

Procedural History

The appellant filed O.S. No.4/2009 for partition and separate possession before the Senior Civil Judge and Prl. JMFC, Tarikere, which was dismissed on 12.09.2014. The appellant appealed in R.A. No.82/2014 before the Prl. District Judge, Chikkamagaluru, which was dismissed on 12.10.2017. The appellant then filed the present second appeal under Section 100 CPC before the High Court of Karnataka.