The First Appellate Court must address applications to include legal representatives of deceased parties to ensure fair procedural conduct in partition suits.

JUDGMENT :

E.S. Indiresh, J.

This appeal is preferred by the defendants No.3 to 8 assailing the judgment and decree dated 06.07.2015 in RA No.50/2013 on the file of the II Addl. District and Sessions Judge at Davanagere, dismissing the appeal and confirming the judgment and decree dated 02.04.2013 in OS No.49/2008 on the file of the Senior Civil Judge, Harihar, decreeing the suit of the plaintiff in part.

2. For the sake of convenience, the parties are referred to their ranking before the Trial Court.

3. It is the case of the plaintiff that the plaintiff and defendants No.1 to 3, and the father of the defendant No.5 - Shambulingappa, and father of the defendants No.7 and 8 - Karibasappa are the children of Goudaplar Hanumanthappa and Dyavamma. It is further stated that the plaintiff is having a share in the suit schedule property, which belonged to the mother of the plaintiff - Dyavamma, and as such, the plaintiff has filed OS No.49/2008 before the Trial Court seeking relief of partition and separate possession in respect of the suit schedule properties.

4. After service of notice, the defendants entered appearance and filed detailed written statement, and have taken up a specific plea with regard to the earlier partition said to have been executed between the father of the defendants No.1 to 3 and the plaintiff on 23.11.1998, and thereafter, there was subsequent interse partition between defendants No.2 and 3 on 21.05.2002. Accordingly, sought for dismissal of the suit.

5. The Trial Court based on pleadings on record formulated the issues and additional issues for its consideration.

6. In order to establish their case, the plaintiff examined herself as PW.1 and got marked twelve documents as Exs.P1 to P12. The defendants have examined one witness as DW1 and got marked 29 documents as Exs.D1 to D29.

7. The Trial Court after considering the material on record, by judgment and decree dated 02.04.2013, decreed the suit in part. Feeling aggrieved by the same, the defendants have preferred RA No.50/2013 before the First Appellate Court. The said appeal was resisted by the plaintiff and the remaining defendants before the First Appellate Court.

The First Appellate Court after re-appreciating the material on record, by judgment and decree dated 06.07.2015, dismissed the appeal. Feeling aggrieved by the same, the defendants No.3 to 8 have preferred this Regular Second Appeal.

8. This Court, vide order dated 11.01.2017, has formulated the following substantial question of law:

"Whether the First Appellate Court has committed any serious legal error in disposing of the appeal without passing any order on the application filed by the appellant therein, to bring the LRs. of the 7^th respondent on record?

9. Heard Sri V B Siddaramaiah, learned counsel appearing for the appellants herein, and Sri G M Chandrashekar, learned counsel appearing for the respondent No.1 herein.

10. Sri V B Siddaramaiah, learned counsel appearing for the appellants argued that, the partition had taken place in the joint family of plaintiff and defendants on 23.11.1998 as per Ex.D1. The said aspect was ignored by both the Courts below, and accordingly sought for interference of this Court. It is also argued by the learned counsel appearing for the appellants herein, by inviting attention of the Court to the application in I.A.No.3/2024 by referring to the documents produced with regard to the earlier partition between the plaintiff and the defendants. It is also argued by the learned counsel appearing for the appellants herein by referring to the application filed before the First Appellate Court to bring the L.Rs of the de