A party must be afforded an opportunity to contest a case fully, especially when counterclaims and evidence are involved, ensuring a fair hearing in partition disputes.

ORAL JUDGMENT :

(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

The present First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (for short, ‘CPC’), by the defendant Nos.1 to 5 calling in question the judgment and decree dated 22.06.2022 passed in OS No.25/2014 by the Senior Civil Judge, Bailhongal (for short, ‘the Trial Court’), whereunder, the suit for partition and separate possession filed by the plaintiffs/respondent Nos.1 to 9 herein has been decreed by the Trial Court.

2. The parties will be referred to as per their ranks before the Trial Court for the sake of convenience.

3. It is the case of the plaintiffs that the propositus namely Abdulraheem died on 13.12.1984, and his wife Jaibunissa died on 25.08.1997. The genealogy of the parties is extracted hereunder for reference:

4. It is the further case of the plaintiffs that the properties of the propositus, not having been divided or partitioned, the parties are in joint possession and enjoyment as tenants in common and hence, the plaintiffs filed the suit for partition seeking for their 2/8^th share in the suit schedule property.

5. The defendant Nos.1 to 5, 13, 14 and 15 entered appearance through their counsel. The other defendants remained absent and were placed exparte before the Trial Court.

6. The defendant Nos.1 to 5 in their written statement has disputed the case of the plaintiffs and also the genealogy and contended that there is no cause of action to file the suit against the defendants. It is specifically denied that there was no partition. That the names of the defendant Nos.1 to 5 have been entered in the revenue records lawfully and the alienations made have not been challenged. That the plaintiffs are not the legal representatives of deceased Abdul Rahim. It is the specific case of the defendants that the father of the plaintiff Nos.3 and 6 got executed a relinquishment deed dated 05.11.1986, in favour of defendant No.2 and the father of plaintiff Nos.3 and 6 ceased to have any rights in the suit properties consequent to execution of the said relinquishment deed. Various contentions have been taken by the defendants on merits of the matter and a counter claim has also been made, whereunder, the defendant Nos.1 to 5 sought for the relief of declaration and other reliefs.

7. The defendant Nos.13 and 14 have also filed their written statements. On the basis of pleadings of the parties, the Trial Court framed twelve issues and two additional issues.

8. PW1 was examined on behalf of the plaintiffs and Ex.P1 to P15 has been marked in evidence. Defendant No.14 has been examined as DW1 and Ex.D1 to D25 have been marked in evidence. The Trial Court by its judgment and decree dated 22.06.2022 partly decreed the suit and passed the following order:

“The suit of the plaintiffs is partly decreed with proportionate costs.

The plaintiff Nos.1 to 7 are together entitled for 2/8^th share. Defendant Nos.1 to 5 are together entitled for 2/8^th share. The defendant Nos.6 to 9 are together entitled for 1/8^th share. The defendant Nos.10 to 12 are entitled for 1/8^th shares each in the suit properties except item Nos.5 and 6.”

9. Being aggrieved, the present appeal is filed by defendant Nos.1 to 5.

10. Along with the above appeal, the appellants/defendant Nos.1 to 5 have, inter alia, filed IA No.2/2022 under Order XLI Rule 27 read with Section 151 of CPC, seeking leave of the Court to produce the original relinquishment deed and original gift deed. It is averred in the affidavit filed in support of the application that the documents produced along with application were misplaced and could not have been produced