MAIN POINT
First appellate court being the final court of fact is duty bound to consider all pleadings, arguments and evidence independently.

Headnote:(a) Code of Civil Procedure, 1908 – Section 96 r/w Order XLI rules 31 – First appeal – First appellate court being the final court of fact, is duty bound to consider all pleadings, arguments and evidence independently – Instantly, High Court not dealing with any submissions urged by appellants and/or respondents, nor taking note of grounds taken by the appellants or cross objections filed by plaintiffs under Order XLI Rule 22 – Not making any attempt to appreciate evidence adduced by parties – No finding as to whether judgment of trial Court was sustainable or not and if so, how, and if not, why? – Impugned judgment not sustainable. (Para 23, 25)
       (2001) 3 SCC 179; (2001) 4 SCC 756; (2005) 10 SCC 243; (2005) 12 SCC 303; (2010) 13 SCC 530; (2011) 12 SCC 174; 2014(12) Scale 171 – Relied upon
       AIR 1969 Kerala 316 – Cited with approval
       (b) Code of Civil Procedure, 1908 – Section 96 t/w Order XLI, rule 31 – High Court ought to have gone into merits of the claim of the parties in its proper perspective – It ought to record finding regarding extent of shares received by each coparcener/co-owner keeping in view the nature of properties such as whether it was self acquired property or ancestral property and, if so, in whose hands, its source of acquisition by such person, the manner of devolution on the legal representatives of such person etc. – High Court doing nothing of the sort – Impugned judgment not sustainable. (Para 26)

       Facts of the case:
       One Basavantayya Revanayya Mathad was married to Shantakka Mathad (defendant no. 2). Out of this wedlock, three children were born -one son Shashidhar (defendant no.1) and two daughters -Rajeshwari (Died in 2003) and -Gayatri (Died in 2004) -defendant no.3. Shashidhar was married to Uma and out of this wedlock, three daughters were born -Ashwini (plaintiff no. 1), Nivedita (plaintiff no.2) and Puja who was given in adoption to Uma's sister.
       Shashidhar divorced to Uma and re-married to Manjula (defendant no.4). Out of this second marriage, two daughters were born -Aishwarya (defendant no.5) and Vaishnavi (defendant no.6).
       Basavantayya had extensive properties.
       Basavantayya died on 21.07.1991. On his death and also on the death of his one unmarried daughter Rajeshwari, disputes arose between his legal representatives regarding their respective shares in the properties and also regarding ownership of some members of his family in relation to certain properties standing in the name of members of his family.
       The disputes led to filing of civil suit by the daughters of defendant No.1 from his first wife-Uma (deceased) against the other members of the family, i.e., their father, step-mother and step-sisters for determination of their respective shares, partition by meets and bounds and separate possession in the suit properties held and possessed by the members of the family of late Basavantayya.
       The trial Court partly decreed the plaintiffs’ suit and accordingly passed preliminary decree in relation to the suit properties.
       Appeals and cross-appeals were filed.
       The Division Bench of the High Court disposed of the appeal and cross objections and modified the judgment and decree of the trial court to the detriment of the defendants.
       Finding of the Court:
       High Court ought to have gone into merits of the claim of the parties in its proper perspective and record finding regarding extent of shares received by each coparcener/co-owner.
       Result:
       Appeal allowed, case remanded to High Court.

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed by the defendants against the judgment and order dated 06.12.2012 passed by the Division Bench of the High Court of Karnataka Circuit Bench at Dharwad in Regular First Appeal No. 3052 of 2010, which in turn arises out of the judgment and decree dated 10.02.2010 passed by the Ist Additional Civil Judge (Sr. Division) at Hubli in Original Suit No. 73 of 2004.

3. In order to appreciate the short issue involved in this appeal, it is necessary to state a few relevant facts:

4. One Basavantayya Revanayya Mathad was married to Shantakka Mathad (defendant no. 2). Out of this wedlock, three children were born -one son Shashidhar (defendant no.1) and two daughters -Rajeshwari (Died in 2003) and -Gayatri (Died in 2004) -defendant no.3. Shashidhar was married to Uma and out of this wedlock, three daughters were born -Ashwini (plaintiff no. 1), Nivedita (plaintiff no.2) and Puja who was given in adoption to Uma's sister.

Shashidhar divorced to Uma and re-married to Manjula (defendant no.4). Out of this second marriage, two daughters were born -Aishwarya (defendant no.5) and Vaishnavi (defendant no.6).

5. Basavantayya had extensive properties. On 21.07.1991, Basavantayya died leaving behind him the aforementioned members of his family. On his death and also on the death of his one unmarried daughter Rajeshwari, disputes arose between his legal representatives regarding their respective shares in the properties and also regarding ownership of some members of his family in relation to certain properties standing in the name of members of his family. The disputes unfortunately could not be settled amicably which led to filing of civil suit by the daughters of defendant No.1 from his first wife-Uma (deceased) against the other members of the family, i.e., their father, step-mother and step-sisters for determination of their respective shares, partition by meets and bounds and separate possession in the suit properties held and possessed by the members of the family of late Basavantayya . The defendants contested the civil suit by denying the plaintiffs’ claim. The trial Court framed issues. Parties adduced evidence.

6. By judgment and decree dated 10.02.2010, the trial Court partly decreed the plaintiffs’ suit and accordingly passed preliminary decree in relation to the suit properties. It was held that plaintiffs are entitled for partition and separate possession of their 1/6th share each in some properties specified in the decree whereas 1/10th share each in other suit properties as specified in the decree.

7. Dissatisfied with the preliminary decree, the defendants filed first appeal being R.F.A. No. 3052 of 2010 and the plaintiffs filed cross objections being R.F.A. CROB No. 103 of 2011 under Order XLI Rule 22 of the Civil Procedure Code, 1908 (in short “the Code”). This is how the entire preliminary decree became the subject-matter of first appeal filed by the defendants.

8. By impugned judgment and order dated 06.12.2012, the Division Bench of the High Court disposed of the appeal and cross objections and modified the judgment and decree of the trial court to the detriment of the defendants. It is against this judgment and order, the defendants have filed this appeal by way of special leave.

9. Learned Counsel for the appellants, while assailing the legality and correctness of the impugned judgment, contended that the High Court without adverting to all the factual details and various grounds raised in the first appeal, disposed of the same in a cryptic manner. According to learned counsel, the High Court neither dealt with any issue nor appreciated the ocular and documentary evidence adduced by the parties nor examined the legal principles applicable to the issues arising in the case and nor rendered its findings on any contentious issues though urged by the appellants herein in support of the appeal. Learned counsel further contended that it was the duty of the H

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2015 Supreme(SC) 27

SUPREME COURT OF INDIA FAKKIR MOHAMED IBRAHIM KALIFULLA, ABHAY MANOHAR SAPRE, JJ. Shasidhar & Others – AppellantsVERSUS Smt. Ashwini Uma Mathad & Anr. – RespondentsCIVIL APPEAL No. 324 OF 2015 (ARISING OUT OF SLP(C) No.14024/2013)Decided On : 13-01-2015

MAIN POINTFirst appellate court being the final court of fact is duty bound to consider all pleadings, arguments and evidence independently.

Cases Referred (7)

SUPREME COURT OF INDIA
FAKKIR MOHAMED IBRAHIM KALIFULLA, ABHAY MANOHAR SAPRE, JJ.
Shasidhar & Others – Appellants
VERSUS
Smt. Ashwini Uma Mathad & Anr. – Respondents
CIVIL APPEAL No. 324 OF 2015 (ARISING OUT OF SLP(C) No.14024/2013)
Decided On : 13-01-2015

MAIN POINT
First appellate court being the final court of fact is duty bound to consider all pleadings, arguments and evidence independently.