The trial and appellate courts found the absence of credible evidence for a prior partition; thus, the property was to be equitably shared among the heirs, reaffirming the principle that documentary evidence is crucial in partition suits.

JUDGMENT :

V. SRISHANANDA, J.

Heard Sri.Prasanna V. R., learned counsel for the appellants and Sri.K.Shrihari, Learned counsel for the respondents.

2. Defendant No.1 in O.S.No.6/2013 is the appellant. He suffered the decree whereby the suit ‘A’ schedule property was ordered to be partitioned granting 1/4^th share to the plaintiff and 1/4^th share each to defendant Nos.1 to 3.

3. During the pendency of suit, defendant No.3 died. Therefore, his legal representatives were brought on record. Suit was filed by brother of defendant No.1 by contending that suit ‘A’ schedule property are the self acquired properties of his father namely Manjayya Madivala resident of Perabe village, Puttur Taluk, Dakshina Kannada District. Particulars of suit ‘A’ schedule property is culled out hereunder for ready reference:

Immovable property situated in Perabe village, Puttur Taluk and comprised in.

4. Suit on contest came to be decreed as it is the defendant No.1 who alone contested the suit by contending that there was a prior partition; as such, second suit for partition is not maintainable.

5. According to the written statement of defendant No.1, the prior partition was an oral partition; as per which parties enjoyed the property in their respective shares without any hindrance from other sharers.

6. Learned Trial Judge after framing necessary issues, recorded the evidence of the parties. Thereafter, heard the arguments and on cumulative consideration of oral and documentary evidence on record, decreed the suit of the plaintiff disbelieving the theory put forward by defendant No.1 that there was a prior partition.

7. Being aggrieved by the same, defendant No.1 filed an appeal before the First Appellate Court in R.A.No.5016/2019.

8. Learned Judge in the First Appellate Court after securing the records, reappreciated the factual and legal aspects in the matter and dismissed the appeal of defendant No.1 and confirmed the order of the Trial Court.

9. Being further aggrieved by the same, defendant No.1 is before this Court, in this appeal.

10. During the pendency of the appeal, defendant No.1 died and his legal representatives are brought on record.

11. In the appeal following grounds and substantial questions of law are raised:

GROUNDS

The Judgment and Decrees under challenge are opposed to law, facts and materials placed on record.

The Judgment and Decrees under Appeal are perverse, capricious and illegal, which needs to be set-aside.

The Trial Court and First Appellate Courts have failed to draw proper inferences from the pleading of the parties, materials placed on record and admitted and proved facts and those drawn are erroneous.

The Trial Court has failed to frame proper issues arising out of the pleadings of the parties. When the 1st Defendant has specifically pleaded that the tenancy was the family tenancy being cultivated by Late Manjappa Madivala and other family members and occupancy rights were granted by the Land Tribunal in favour of the father being kartha of the family, and issue as to whether the Plaintiff has proved that the tenancy held by Late Manjappa Madivala was a joint family: tenancy or his individual tenancy excluding the family members ought to have been raised and burden should have been casted on the Plaintiff. In the absence of such an issue with respect to the tenancy of family or individual, the Judgement and Decree of the Trail Court rendered unsustainable.

The Trial Court has failed to appreciate the admission of the PW-1 as to the survey and preparation of Sketch by the Surveyor effecting division of