Case Note & Summary
The present regular second appeal was filed by defendants No.1 to 6 (appellants) under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 28.06.2019 passed by the II Additional District and Sessions Judge, Bagalkot in R.A.No.34/2012, which confirmed the judgment and decree dated 07.03.2012 passed by the I Additional Senior Civil Judge, Bagalkot in O.S.No.298/2006. The original suit was filed by the plaintiffs (respondents No.1 to 3) seeking partition and separate possession of their 1/3rd share in the suit schedule properties, claiming that the properties were joint family properties of the plaintiff and defendants. The defendants contested the suit, asserting that there had already been a prior partition between the parties and that the plaintiffs had no subsisting right or share. The trial court, after evaluating the evidence, decreed the suit in favor of the plaintiffs, granting them 1/3rd share each. The first appellate court affirmed this decision. In the second appeal, the High Court framed a substantial question of law regarding whether the concurrent findings were perverse. Upon examining the records, the High Court found that the courts below had correctly appreciated the evidence, including the will and sale deed relied upon by the defendants, and had rightly concluded that the defendants failed to prove the alleged prior partition. The High Court held that no substantial question of law arose and dismissed the appeal, confirming the concurrent findings.
Headnote
A) Civil Procedure - Regular Second Appeal - Section 100 CPC - Concurrent Findings of Fact - The High Court declined to interfere with concurrent findings of fact recorded by the trial court and first appellate court in a partition suit, as no substantial question of law arose. The courts below had correctly appreciated evidence and held that the plaintiffs proved their case for partition and separate possession of 1/3rd share, while the defendants failed to prove prior partition. (Paras 1-10) B) Hindu Law - Partition - Joint Family Property - Burden of Proof - In a suit for partition, the initial burden is on the plaintiff to prove that the property is joint family property. Once that is established, the burden shifts to the defendant to prove any claim of prior partition. The defendants failed to discharge this burden as their evidence was inconsistent and unreliable. (Paras 5-8) C) Evidence Act - Appreciation of Evidence - Oral and Documentary Evidence - The courts below properly appreciated the oral and documentary evidence, including the will and sale deed relied upon by the defendants, and found them insufficient to prove prior partition. The High Court found no perversity in such appreciation. (Paras 6-9)
Issue of Consideration
Whether the judgment and decree passed by the courts below are perverse and call for interference in a regular second appeal under Section 100 CPC?
Final Decision
The High Court dismissed the regular second appeal, confirming the judgment and decree of the first appellate court and trial court, thereby granting the plaintiffs 1/3rd share each in the suit schedule properties.
Law Points
- Regular second appeal under Section 100 CPC
- concurrent findings of fact
- substantial question of law
- partition suit
- joint family property
- prior partition
- burden of proof
- appreciation of evidence
