First Appellate Court must independently assess evidence and comply with procedural mandates under Order 41 Rule 31, ensuring thorough evaluation in partition cases.

JUDGMENT :

ASHOK S.KINAGI, J.

This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 26.03.2015, passed in R.A.No.10027/2014 by the learned IV Additional District and Sessions Judge, Doddaballapura, Bangalore Rural District, Bangalore.

2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were defendants No.1 to 4, respondent No.1 to 3 were the plaintiffs, and respondent No.4 was defendant No.5.

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

The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that defendant No.1 - Smt. Akkayamma is the wife of late Sri. Nanjappa. Defendants No.2 to 5 and plaintiffs No.1 to 3, are the children of the late Nanjappa and Smt. Akkayamma. It is contended that the suit schedule property was acquired by Nanjappa, and the suit schedule property is the ancestral property of the plaintiffs and defendants, and no partition is effected between the plaintiffs and defendants. The plaintiffs demanded partition and separate possession. The defendants refused to effect a partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

3.1. Defendants No.1 to 3 filed a written statement denying the averments made in the plaint. It is contended that the plaintiffs had filed a suit in O.S.No.123/2003 against defendant Nos.1 to 4 for declaration and permanent injunction. The said suit was ended up in a compromise before Lokadalath and, the respective parties are in possession of their respective shares. Hence, the suit filed by the plaintiffs is not maintainable. Accordingly, prays to dismiss the suit.

3.2. The trial Court, based on the pleadings of the parties, framed the following issues.

1) Whether plaintiffs proves that they are the joint family members along with defendants No.1 to 4 and suit schedule property is their joint family property?

2) Whether suit is properly valued and Court fee paid is sufficient?

3) Whether the defendants prove that, partition has already been taken place with respect to the joint family property?

4) Whether plaintiffs are entitled for the relief sought by them?

5) What order or decree?

3.3. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1, examined one witness as PW.2, and marked 9 documents as Exs.P1 to P9. In rebuttal, defendant No.2 was examined as DW.1, one witness was examined as DW.2, and 8 documents were marked as Exs.D1 to D8. The trial Court, after recording the evidence, hearing on both sides, and on assessing the verbal, and documentary evidence, answered issues No.1 to 3 in the affirmative, issue No.4 in the negative, and issue No.5 as per the final order. The suit of the plaintiffs was dismissed with costs vide judgment dated 27.09.2014.

3.4. The plaintiffs, aggrieved by the judgment and preliminary decree passed in O.S.No.18/2007, preferred an appeal in R.A.No.10027/2014 on the file of learned IV Additional District and Sessions Judge, Doddaballapur, Bangalore Rural District, Bangalore.

3.5. The first Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration.

1) Whether the impugned judgment and decree passed by the Court below is perverse, capricious and arbitrary and it calls for any interference by this Court?

2) What order?

3.6. The first Appellate Court, on reassessing the verbal and documentary evidence, answered point No.1 in the affirmative, and point No.2 as per the final order. The firs