The court allowed the introduction of additional evidence in an appeal, highlighting the necessity to remand the case for reconsideration when vital evidence is not presented at the trial.

JUDGMENT :

C.M. POONACHA, J.

The RFA No.100015/2023 is filed by the appellant/defendant No.3 calling in question the judgment and decree dated 14.06.2022 passed in O.S.No.59/2019 by the IV-Additional Senior Civil Judge & JMFC., Belagavi,[Hereinafter referred to as ‘the Trial Court’], whereunder the suit for partition and separate possession filed by the respondent No.1/plaintiff has been decreed by the Trial Court.

2. For the sake of convenience, the parties shall be referred to as per their rank before the Trial Court.

3. It is the case of the plaintiff that the propositus-Mahadev Yallappa Patil and his wife Smt.Parvati Mahadev Patil had three sons viz., Maruti (defendant No.1), Jaywant (defendant No.7) and Yallappa (defendant No.6). The plaintiff is the daughter of defendant No.1. Defendant No.2 is the wife of defendant No.1 and defendant Nos.3 to 5 are the other siblings of the plaintiff, being children of defendant Nos.1 and 2. That, the propositus-Mahadev Yallappa Patil died in the year 2000 and his wife Smt.Parvati Mahadev Patil died 16 years prior to filing the suit. It is further case of the plaintiff that the joint family headed by the propositus owned agricultural lands, which have been detailed in schedule-A as item Nos.1 to 12 and he also owned house properties, which have been detailed as item Nos.1 to 3 of schedule-B to the plaint. The plaintiff has filed the suit for partition and separate possession of the said joint family properties.

3.1 The defendant Nos.1 to 3 and 5 entered appearance in the suit and filed their written statement. Defendant No.6 appeared in the suit in person but did not contest the suit. In the written statement filed by the defendant Nos.1 to 3 and 5, they have admitted the relationship but have denied the case put forth by the plaintiff that the suit schedule properties are the joint family properties. Further, various contentions have been taken in the written statement as to the mode and manner of acquisition of the properties. It is further specifically contended that the plaintiff has not impleaded all the family members in the suit.

4. Based on the pleadings of the parties, the Trial Court framed five issues.

5. The plaintiff examined herself as PW1 and marked Exs.P1 to P19. The defendant No.3 examined himself as DW1 and got marked Exs.D1 to D12. Ex.D1 was marked through confrontation to PW1. The Trial Court by its judgment and decree dated 14.06.2022 decreed the suit and passed the following:

“ORDER

The suit of plaintiff is hereby partly decreed.

The plaintiff is entitled for the partition and separate possession of 1/100th share in suit ‘A’ property and 1/5th share in GPC 932 of suit ‘B’ property.

However, the suit in respect of Sl. No. 1 & 2 of suit ‘B’ property is hereby dismissed.

The branches of late. Yallappa Patil, i.e late. Bhairu is allotted with 1/4th share, the second branch late. Mahadev Patil with 1/4th share, the third branch late. Hanmant with 1/4th share and fourth branch late. Laxman with 1/4th share.

The plaintiff shall implead the daughters of late. Bhairu by name Shanta and Sakubai, the daughters of late. Mahadev by name Laxmi & Jeejabai, the daughters of late. Hanmant by name Laxmi & Indu and daughter of late. Laxman by name Masnakka, Bharata, Savita, Avubai, Sarita, Kalpana & Reshma or their legal heirs as the case may be in the final decree proceedings.

No order as to costs.

Draw preliminary decree accordingly.”

6. Being aggrieved, the present appeal is filed by the defendant No.3.

7. Along with the above appeal, the appellant/defendant No.3 has, inter alia, filed I.A.No.1/2023 under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure, 1908, [Hereinafter referred to as ‘CPC’] to permit the ap