The First Appellate Court erred procedurally by relying on additional evidence without properly recording it, warranting reversal of its decision on grounds of arbitrariness.

JUDGMENT :

(ASHOK S. KINAGI, J.)

1. This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 31.10.2014 passed in Regular Appeal No.63 of 2012 by the learned Second Additional Senior Civil Judge, Mysuru, and praying to confirm the judgment and decree dated 09.03.2012 passed in Original Suit No.513 of 2006 by the learned II Civil Judge and JMFC, Mysuru.

2. Brief facts leading rise to the filing of this appeal are as follows:

3. For convenience, the parties are referred to based on their rankings before the Trial Court, i.e., the appellants were the plaintiffs and the respondents were the defendants.

4. The plaintiffs filed a suit against the defendants for partition and separate possession contending that the suit schedule property is the joint family property of the plaintiffs and the defendants and no partition has been effected. The plaintiffs demanded partition and separate possession of the suit property. However, the defendants refused to effect partition and hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, they pray to decree the suit.

5. The defendants filed a written statement admitting the relationship between the parties. It is contended that there was a partition between the plaintiffs and the defendants, and prior to partition, the husband of defendant No.1 was selected as a priest to the Marigudi temple and the suit property was handed over to him. It is admitted that the husband of defendant No.1 got changed the records to his name and he was cultivating and enjoying the suit schedule property as the absolute owner. It is contended that the suit schedule property is not the joint family property of the plaintiffs and the defendants and the suit filed by the plaintiffs is not maintainable. Hence, they pray for dismissal of the suit.

6. The Trial Court, based on the pleadings of the parties, framed the following issues:

(i) “Whether the plaintiffs prove that the suit schedule property is a joint family property and they are in joint possession thereof?

(ii) Whether the defendants prove that the properties belonging to the joint family were partitioned in the year 1964?

(iii) Whether the plaintiffs are entitled for partition and separate possession of their share as prayed in the suit? (iv) What order or decree?”

7. The plaintiffs, to substantiate their case, examined plaintiff No.3 as PW-1 and marked three documents as Exhibits P-1 to P-3. On the other hand, defendant Nos.1 and 2 were examined as DW-1 and DW-2 respectively and marked thirty-two documents as Exhibits D-1 to D-32.

8. The Trial Court, after recording the evidence, hearing both sides and assessing verbal and documentary evidence, answered issue Nos.1 and 3 partly in the affirmative, issue No.2 in the negative and issue No.4 as per the final order.

9. The suit of the plaintiffs was partly decreed with costs. It is declared that the plaintiffs are entitled to a one-fifth share each with their separate possession of the suit schedule property by metes and bounds.

10. The defendants, aggrieved by the judgment and preliminary decree passed in Original Suit No.513 of 2006, preferred an appeal in Regular Appeal No.63 of 2012 on the file of the II Additional Senior Civil Judge, Mysuru.

11. During the pendency of the regular appeal, the defendants filed an application for production of additional evidence.

12. The First Appellate Court, after hearing