OMKAR NATH Vs. AUTAR KRISHEN

JUDGEMENT

(1.) HEARD learned counsel for the parties on the admission of this civil second Appeal. The record was also thoroughly examined.

(2.) IT appears that the predecessor -in -interest of the appellants had filed an application before the learned Tehsildar for partition of the suit land in accordance with Section 105 of the Jammu and Kashmir Land Revenue Act. He had based his title to half of the suit property as being one of the sons of Shiv Ram Bhan, the last holder of the land. The learned Tehsildar decided to proceed to enquire into the merits of the objections and followed the procedure as laid down in the Civil Procedure Code for the trial of the original suits. The respondents disputed the status of the said predecessor -in -interest of the appellants as the son of Shiv Ram as also his title to the property. At the conclusion of the trial, the learned Tehsildar accepted the application and ordered the partition of the suit property between the co -owners. An appeal came to be filed before the learned District Judge, Srinagar, against the said decree. The learned District Judge set aside the decree and remanded the case for fresh trial, the said prepositus thereafter, amended his application and based his title as being the adopted son of Shiv Ram Bhan. Fresh issues were raised in the case. Consequently, the Tehsildar again allowed the application. The respondents again filed an appeal before the District Judge. The learned District Judge has allowed the appeal. According to the appellants, some substantial questions of law are involved in the case and hence this second appeal.

(3.) IT may be stated here that with the amendment of the Code of Civil Procedure and the incorporation of Section 10Q -A therein, the scope and extent of second appeals has been limited only to substantial questions of law, i. e. the second appeal is now available only where substantial question of law is involved in the case, and not otherwise. Second appeal cannot be filed against a finding of fact unless it is grossly vitiated by application of wrong tests or is based on mere conjectures.