Judicial findings must be based on proper appreciation of evidence; previous claims of partition must be substantiated by credible proof.

JUDGMENT :

V Srishananda, J.

Heard Sri. Chandraiah, learned counsel for the appellants and Sri. H.V. Shivaram for the contesting respondents No.1 to 3.

2. Defendants No.1 to 7 are the appellants challenging the decree passed in O.S.No.86/2015 whereby suit for partition and separate possession came to be decreed. Operative portion of the judgment of the Trial Court reads as under:

"The suit of the plaintiffs is decreed.

The plaintiffs together, the defendants 1 to 7 together, defendants 8(a) to (c) together, defendants 9(a) to (d) together, defendant No.10 and defendant No.11 are entitled for 1/6th share in the suit schedule properties by way of partition & separate possession by metes & bounds.

In the facts & circumstances of the case no order as to costs.

Office to draw preliminary decree accordingly."

3. Validity of the judgment and decree passed by the Trial Court was subject matter of R.A.No.5012/2021 filed by defendants No.1 to 7.

4. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and re-appreciated the material on record and dismissed the appeal of the defendants, but shares were altered. Operative portion of the judgment of the First Appellate Court reads as under:

"The appeal filed by the defendants No.1 to 7 under section 96 R/W Order XLI Rule 1 of CPC in RA No.5012/2021 is herewith dismissed.

The Decree and Judgment dated 26-03-2021 in OS No.12/2015 passed by the Additional Senior Civil Judge and JMFC, Madhugiri is herewith confirmed, subjected to following modification.

The decree passed by the trial court is modified to the extent that the plaintiffs together, defendant No.1 to 7, together, defendant No.8(a) to 8(c) together, defendant No.9(a) to 9(d) together and defendant No.10 are entitle to 1/6th share each in the plaint schedule properties. The 1/6th share of Hariyamma shall be allotted equally to first plaintiff and 11th defendant.

From the facts and circumstance of the case there is no order as to cost.

Office is directed to draw decree accordingly."

5. Plaintiff did not chose to challenge the modification/alteration of the shares. Therefore, judgment of the First Appellate Court has become final insofar as the plaintiff is concerned.

6. Being further aggrieved by the judgment of the First Appellate Court, the defendants/appellants are before this Court on the following grounds:

That the Judgment and decrees being passed by the trial court and the first appellate court is contrary to law and probabilities of the case, hence the same are liable to be set-aside.

That the courts below grossly erred in not properly appreciating the evidence on record and thereby erred in passing the impugned Judgment and decrees.

That the courts below grossly erred in coming to conclusion that the item No:5 of the suit schedule property as joint family property and thereby erred in not properly appreciating that the item No:4 is self acquired property and that further the courts below grossly erred in giving a finding to the effect that the appellants are not entitled for any sort of share in the same.

That the courts below grossly erred in not coming to conclusion that there was already a partition amongst the heirs of Chikkaramaiah 37 years back i.e., on 12-04-1979 and to the same pallu patti was substantiated and in the same item No:1 has been allotted to Durgappa, Sy. No:5/1, Sy. No:88 and Sy. No:88 being item No:2 and 3 has been allotted to the share of Ranmaiah, the father of the plaintiffs and Sy. No:126 and Sy.No:88 has been allotted to the share of 10th defendants Ramachandrappa. Thus, in view of the partition has already been taken place t