Partition Suit- Plaintiff Not Disentitled To Seek Relief In Second Appeal Merely Because He Did Not File First Appeal Against Denial Of His Claims By Trial Court: Supreme Court

The Supreme Court observed that the plaintiff in a partition suit is not disentitled to seek relief in second appeal merely because his claim was denied by the trial court and he had not challenged the same by way of appeal.

The bench comprising Justices L. Nageswara Rao and B R Gavai observed that in a suit for partition, the position of the plaintiff and the defendant can be interchangeable.

In this case, the trial court held that plaintiff Nos. 4 to 8 were not entitled to any share in the suit schedule properties of Mohiyuddin Pasha. The said judgment and decree of the trial court was not challenged by plaintiff Nos.4 to 8. The same was only challenged by the defendant no.1. The High Court in second appeal granted some reliefs to plaintiffs 4 to 8. So in this appeal before the Apex Court, the contention raised by the defendant was that the second appeal at the behest of plaintiff Nos.4 to 8 was not at all tenable.

To reject this contention, the bench referred to the judgment in Chandramohan Ramchandra Patil and Others v. Bapu Koyappa Patil (Dead) Through LRs and Others (2003) 3 SCC 552 . The court said:

"In that view of the matter, we find that the contention raised on behalf of the appellant with regard to plaintiff Nos.4 to 8 being not entitled to relief in the second appeal on the ground that they have not challenged the judgment and decree of the trial court before the First Appellate Court, is not sustainable. As held by this Court in the case of Chandramohan Ramchandra Patil (supra), the trial court could grant relief even to the non­-appealing plaintiffs and make an adverse order against all the defendants and in favour of all the plaintiffs. Merely because the trial court had not granted relief in favour of plaintiff Nos.4 to 8, would not come in their way in the High Court allowing their claim."

Yet another contention raised by the appellant was that the High Court, in the second appeal, has framed questions of law, which are, in fact, not questions of law but questions of fact. In this regard, by referring to earlier judgments, the court noted that perversity in arriving at a factual finding gives rise to a substantial question of law, attracting intervention of the High Court under Section 100 of the CPC.

"In the present case, the First Appellate Court had reversed the findings recorded by the trial court which were based upon correct appreciation of evidence. The High Court has given sound and cogent reasons as to why an interference with the findings of the First Appellate Court was required. We also find that the First Appellate Court has failed to take into consideration the voluminous oral as well as documentary evidence, on the basis of which the trial court had recorded its findings. The findings as recorded by the First Appellate Court are based on conjectures and surmises. As such, we are of the considered view that the perverse approach of the First Appellate Court in arriving at the findings would give rise to a substantial question 20 of law, thereby justifying the High Court to interfere with the same.", the bench said while dismissing the appeal.

Headnotes

Partition Suit - Plaintiff is not disentitled to relief in the second appeal merely on the ground that they have not challenged the judgment and decree of the trial court before the First Appellate Court, is not sustainable.

Partition Suit - In a suit for partition, the position of the plaintiff and the defendant can be interchangeable. Each party adopts the same position with the other parties - So long as the suit is pending, a defendant can ask the Court to transpose him as a plaintiff and a plaintiff can ask for being transposed as a defendant. (Para 12)

Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Perversity in arriving at a factual finding gives rise to a substantial question of law, attracting intervention of the High Court under Section 100 of the CPC - There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. [Referred to Municipal Committee, Hoshiarpur v. Punjab State Electricity Board (2010) 13 SCC 216, Illoth Valappil Ambunhi (D) By LRs. v. Kunhambu Karanavan 2019 SCC OnLine SC 1336 and K.N. Nagarajappa and Others v. H. Narasimha Reddy LL 2021 SC 433 ]

Case details: Azgar Barid (D) By LRs vs Mazambi @ Pyaremabi | CA 249 OF 2010 | 21 February 2022

Citation: 2022 LiveLaw (SC) 193

Coram: Justice L. Nageswara Rao and B R Gavai 

Counsel: Adv Naresh Kaushik for appellant, Adv Girish Ananthamurthy for respondents

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