IMPORTANT POINTS
(1) Power of Appellate Court to do complete justice – Court could grant relief even to non-appealing plaintiffs and make an adverse order against all defendants and in favour of all plaintiffs.
(2) Partition suit – In a suit for partition, position of plaintiff and defendant can be interchangeable.

JUDGMENT :

B.R. GAVAI, J.

1. This appeal challenges the judgment and order dated 17th March 2009, passed by the High Court of Karnataka at Bangalore in Regular Second Appeal No. 160 of 1995, thereby allowing the appeal filed by the respondents herein.

2. The facts in brief giving rise to filing of the present appeal are as under:

A suit for partition being O.S. No. 388/77 came to be filed by plaintiff Nos. 1 to 8, who are respondent Nos. 1 to 8 herein before the Prl. Munshiff at Kolar (hereinafter referred to as the “trial court”), for partition and separate possession of the suit properties. Vide judgment and decree dated 11th September 1987, the said suit came to be decreed, in part, declaring that plaintiff No. 2 was entitled to 7/24th share and plaintiff No.3 was entitled to 1/8th share in the suit schedule properties. It was further held that the plaintiffs were not entitled to any share in suit Item Nos. 7 to 9 and 22. Vide the said judgment and decree, the appellant herein-defendant No.1 was directed to render accounts in respect of the receipt and expenditure of the money incurred by him on the suit schedule properties for the period from the date of the suit till the date of effecting actual partition of the suit schedule properties. It was further held that the appellant herein, who was defendant No.1, is liable to divide the profits earned from the properties in favour of defendant Nos.2 and 3 to plaintiff Nos.2 and 3 as per their respective shares.

3. Being aggrieved by the said judgment and decree of the trial court, the appellant-defendant No.1 through L.Rs. had filed Regular Appeal No. 60 of 1988 before the Prl. Civil Judge at Kolar (hereinafter referred to as the “First Appellate Court”). The said appeal was allowed by judgment and order dated 23rd November 1994, by setting aside the judgment and decree dated 11th September 1987 passed by the trial court.

4. The judgment and order passed by the First Appellate Court came to be challenged before the Karnataka High Court by filing Regular Second Appeal No. 160 of 1995. The High Court vide its judgment dated 18th March 1998, set aside the judgment and order dated 23rd November 1994 passed by the First Appellate Court and restored the judgment and decree dated 11th September 1987 passed by the trial court. The judgment passed by the High Court dated 18th March 1998 came to be challenged before this Court by filing Civil Appeal No. 6478 of 1998. This Court vide its order dated 17th August 2004, found that the High Court had allowed the appeal without framing the questions of law as required under Section 100 of the Code of Civil Procedure, 1908 and set aside the judgment dated 18th March 1998, passed by the High Court and remanded the matter to the High Court for disposal afresh in accordance with law.

5. On remand, the second appeal was heard afresh and the High Court framed the following questions of law:

(1) Whether the plaintiffs 1 and 2 are entitled to share in the suit schedule properties, particularly when Rehaman Barid through whom plaintiffs 1 and 2 claim partition predeceased his father - Mohiyuddin Pasha - the propositus?

(2) Whether the first Appellate Court is justified in negativing the case of the plaintiffs 3 to 8 for partition and separate possession after having found that the documents Exs.P-1 to P-7 disclose the paternity of plaintiffs 4 to 8?

(3) Whether the first Appellate Court is justified in dismissing the suit filed by plaintiffs 3 to 8 mainly on the ground that the Nikhanama evidencing the marriage of plaintiff No.3 with Mohiyuddin Pasha is not produced?

(4) Whether the properties found in Mehar Deed Ex.D-1 executed by Mohiyuddin Pasha in favour of first wife Noorabi are liable to be divided among the parties to the present suit?

6. After answering the aforesaid questions of law, the High Court vide the impugned judgment, held that all the suit