The rejection of an application for additional evidence in a partition suit is appropriate when it serves to fill a lacuna rather than addressing substantial claims of ownership.

JUDGMENT :

(ASHOK S. KINAGI, J.)

This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 08.01.2013 passed in RA.No.676/2011 by the Presiding Officer, Fast Track Court, Mysore and the judgment and preliminary decree dated 25.10.2010, passed in O.S.No.807/2008 by the learned III Additional I Civil Judge, Junior Division and JMFC, Mysore.

2. For convenience, parties are referred to based on their ranking before the Trial Court. Appellant was defendant No.1, respondent Nos.1 to 16 were the plaintiffs and respondent Nos.17 and 18 were the other defendants.

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

The plaintiffs filed the suit against the defendants for partition and separate possession. It is the case of the plaintiffs that one late Bahadur Khan, had 8 children i.e., 4 sons and 4 daughters and the suit schedule properties were owned and possessed by late Bahadur khan and the plaintiffs and defendants are the tenants in common. Bahadur Khan was died in 1956 leaving behind his children and there is no partition in respect of suit schedule properties between the plaintiffs and the defendants. The plaintiffs demanded partition and separate possession, but defendant No.1 refused to effect the 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.

4. Defendant No.1 filed a written statement admitting the relationship between the parties to the suit. It is contended that 'B' schedule property was belonged to One Chikkamuniswamy Shetty Choultry and the same was managed by Tahasildar, Mysore and defendant No.1 is a tenant of 'B' schedule property and late Bahadur Khan was not in possession of 'B' schedule property. It is admitted that defendant No.1 and the plaintiffs were in the occupation of 'A' schedule property and the quantum of share, claimed by the plaintiffs is denied as defendant No.1 is also entitle to a share in the said property. It is also contended that Defendant Nos.2 and 3 and deceased sisters of defendant No.1 have executed the relinquishment deed in favour of defendant No.1 and therefore, he is entitled for their share. Hence, prays to dismiss the suit against the defendant No.1.

5. Defendant Nos.2 and 3 filed a written statement admitting the relationship between the parties and prays to decree the suit by allotting the share to defendant Nos.2 and 3 and further, defendant Nos.2 and 3 filed an additional written statement contending that they never executed Hakku Kulase Pathra in favour of defendant No.1 in respect of 'A' schedule property. The said alleged deed of relinquishment is created. Hence, prays to decree the suit.

6. The trial Court, based on the pleading of the parties, framed the following issues.

1. Whether the plaintiffs prove that after death of late.Bahaddur Khan the plaintiffs father and defendants are in joint possession in the suit schedule property as tenants-in-common?

2. Whether 1^st defendant proves that 2^nd and 3^rd defendant have relinquished their right over their share in respect of the ancestral property in favour of 1^st defendant by executing Hakku Kulase Pathra on 15.04.1998 and 19.10.2000 respectively by receiving an amount?

3. Whether defendants prove that plaint B schedule property is not an ancestral property of plaintiff and defendants?

4. Whether plaintiffs prove that they are entitle separate possession of 6/10^th share in the suit schedule property?

5. Whether plaintiff proves that they are entitle mesne profit as prayed for?

6. What order or decree?

7. The plaintiffs, to prove their case, plaintiff No.1 was examined as PW1 an