Judgment :

Dr. Mukundakam Sharma, J.

1. Leave granted.

2. This Special Leave Petition is directed against the judgment and order dated 16.11.2005 passed by the High Court of Karnataka allowing the appeal filed by the respondents herein ereby the High Court has restored the judgment and decree of the trial court. The respondents Nos. 1 to 8 were the plaintiffs before the trial Court and Usmansab Shaikaji Attar was the original defendant in the suit which was filed seeking a decree for partition and separate possession of alleged 7/8 th share in the suit property bearing CTS No. 883/A and 883/B, situated at Aralikatti Deshpande Galli, Belgaum. It was stated in the plaint that Shaikaji Attar, the father of the respondents and the original defendant had two wives, namely Halimabi and Roshanbi who was the plaintiff No. 1.

3. It was submitted in the plaint that Shaikaji Attar died in or around 1969 leaving behind his second wife Roshanbi, i.e. plaintiff No. 1, six sons i.e. plaintiff Nos. 2 to 6. and defendant No. 1 and two daughters i.e. plaintiff Nos. 7 and 8 and heir of pre-deceased son Umarsab.

4. In the said suit, the parties led evidence. The plaintiff No. 2 was examined as PW-1 and the original defendant was examined as DW-1. Both the plaintiffs-respondents and the original defendant also produced certain documents which were exhibited in the suit. The trial Court by its judgment and decree dated 27.7.1988 decreed the suit of the plaintiff by awarding 1/8 th share to the plaintiffs 1 to 6 and 1/16th share to plaintiffs 7 and 8 in the suit property and also 1/8th share in favour of the defendant.

5. Being aggrieved by the aforesaid judgment and decree of the trial Court, the original defendant Usmansab Shaikaji Attar filed a regular appeal before the Court of Civil Judge, Belgaum, Karnataka. During the pendency of the aforesaid appeal, the original defendant produced some additional documents, namely the alleged memorandum of partition by way of additional evidence.

6. The First Appellate Court by its judgment and decree dated 13.11.1995, dismissed the appeal filed by the original defendant.

7. Being aggrieved, the original defendant filed a second appeal before the High Court of Karnataka which was registered as RSA No. 299 of 1996. The High Court by its judgment and decree dated 17.9.1998 allowed the appeal and remanded the matter to the first Appellate Court for fresh disposal with a direction to receive documentary evidence produced before it by the defendant by way of additional evidence.

8. During the pendency of the aforesaid second appeal before the High Court after remand, the original defendant Usmansab died on 7.4.1996. The said defendant left behind his wife Ajambi and she was brought on record as the legal heir of the original defendant. The First Appellate Court thereafter examined Ajambi as AW-1 who was allowed to lead additional evidence and she got the documents exhibited as exhibit (Ex.) D-7 and D-10, which were received as additional documents. The plaintiff No. 2 was examined as RW-1.

9. Thereafter, the Additional Civil Judge (Senior Division) Belgaum by a judgment and decree dated 1.4.2000 allowed the appeal filed by the original defendant, set aside the judgment and decree of the trial court, and consequently dismissed the suit filed by the plaintiffs holding that the additional documents which are produced and exhibited as Ex. D-7 were executed by the predecessor-in-interest, namely Shri Shaikaji during his lifetime and he disposed of the property as per his Will by dividing the property into two parts as claimed by the defendant.

10. The first Appellate Court also held that in view of the pleadings, the documents exhibited as Ex. D-7 is proved, and it is established in terms thereof that there were two divisions effected to the suit property. In arriving at this conclusion, the first Appellate Court also took note of the fact that the names of the persons who were enjoying the aforesaid two divisions had