The Appellate Court has a duty to independently assess the evidence and fulfill its obligations under Sec. 96 of CPC. Failure to do so constitutes procedural errors, and the matter may be remitted back to the Appellate Court for proper assessment and formulation of additional issues.

JUDGMENT/ORDER

1. The captioned appeal is filed by defendant No.4 feeling aggrieved by the concurrent findings of the Courts below, wherein the plaintiffs suit seeking relief of partition - 4 - RSA No. 878 of 2012 and separate possession is decreed granting 1/3rd share each to plaintiff Nos.1 and 2.

2. For the sake of brevity, the parties are referred as they are ranked before the Trial Court.

3. The genealogical tree of the family is as under;

4. One Kurigala Muniyappa is shown to be propositus, who had five sons. In the family tree, it is also indicated that two sons of Kurigala Muniyappa died issue less, therefore, only three branches of propositus - Kurigala Muniyappa are litigating the present suit. The branch of Nanjundappa and Kyathappa have filed the present suit for partition and separate possession contending that the suit schedule properties are joint family ancestral properties.

5. Defendant Nos.1 to 3, who represent the branch of Marappa, have not chosen to contest the suit, while defendant Nos.4 to 6, who are the purchasers, contested the proceedings and have also led in oral and documentary evidence. The Trial Court while answering issue Nos.1 and 2 in the affirmative has come to the conclusion that contesting defendants have not filed any written statement. Therefore, in absence of contest, the Trial Court proceeded to answer issue Nos.1 and 2 in the Affirmative and suit is decreed granting 1/3rd share each to plaintiff Nos.1 and 2 respectively.

6. Defendant Nos.4 to 6, who are the purchasers, feeling aggrieved by the preliminary decree granting 1/3rd share each to the plaintiffs, preferred an appeal in R.A.No.71/2007. The Appellate Court has also come to the conclusion that there is no contest by defendant No.4. In paragraph No.11, the Appellate Court has also made an observation that defendant No.4 has failed to file written statement. Therefore, the Appellate Court on an assumption that there is no contest by defendant No.4 by filing written statement has proceeded to concur with the conclusions and reasons assigned by the Trial Court. Consequently, the appeal is dismissed.

7. This Court by order dtd. 1/2/2023 has admitted this appeal on the following substantial questions of law.

1. Whether both Courts erred in recording a finding that there is no contest by defendant No.4 as he has failed to file written statement is perverse and contrary to the memo dtd. 13/9/2000, where he was permitted to adopt the written statement filed in O.S.No.56/1989?

2. Whether both Courts erred in not framing an issue in the light of the defence set up in para No.7 of the written statement filed by defendant No.4, wherein defendant No.4 - purchaser has specifically claimed that these two properties were self acquired properties of the father of defendant Nos.1 to 3 namely Marappa?

8. Heard learned counsel appearing for defendant No.4 and learned counsel appearing for the plaintiffs.

9. With the consent of both counsel, this matter is taken up for final hearing as the suit of the year 1996 and the parties are litigating in a partition suit for almost 27 years.

10. On examination of the issues formulated by the Trial Court, this Court would find that Trial Court has not properly formulated issues in the present case on hand. This Court is also of the view that findings recorded by both the Courts that defendant No.4 has not filed written statement runs contrary to the memo dtd. 13/9/2000. It appears that defendant No.4 filed a memo dtd. 13/9/2000 seeking leave of the Court to adopt the written statement filed in O.S.No.56/1989, which was admittedly filed by the plaintiffs seeking relief of partition and separate possession. In the said proceedings, the Court returned plaint to present the same before the appropriate forum as the Court was of the view that present suit would lie before the Senior Civil Judge Court and not before the Junior Civil Judge Court. It is in this background, defendant No.4 sought leave of the Court to adop