The First Appellate Court erred by failing to frame appropriate consideration points under C.P.C., affecting the legality of its judgment in the partition suit.

JUDGMENT :

C. M. JOSHI, J.

1. This appeal is filed by the defendants in O.S.No.164/2003, which was reversed by the First Appellate Court in R.A.No.511/2010 by which the dismissal of the suit for partition of a joint property was set aside by the First Appellate Court.

2. The factual matrix that is relevant for the purpose of this appeal may be stated as below:

(a) It is the case of the plaintiffs that they represent their fathers Shanmukhangouda and Basanagouda who were brothers. The said Shanmukhangouda and Basanagouda had a brother by name Rudragouda. The defendants are the descendants of Rudragouda. The suit land bearing Sy.No.20/2, hissa Nos.3 and 4 was the property owned by Shanmukhangouda, Rudragouda and Basanagouda jointly. Therefore, the father of plaintiff No.1 and father of plaintiff No.2 i.e., Shanmukhangouda and Basanagouda had 1/3^rd share each. The said property was the exclusive property of their father, (who is also Basanagouda) and as such, they had inherited the share.

(b) It is contended that all other properties belonging to Shanmukhangouda, Rudragouda and Basanagouda were divided long back, but the suit land was kept in a joint status and great part of the said land was a wasteland used for grazing the cattle. Plaintiff No.1 was in government service and he was away from the village and plaintiff No.2 was an uneducated, rustic person. Taking advantage of this, the defendants and their father got their name entered in the revenue records, omitting the names of the plaintiffs. Recently the defendants without following any mandatory provisions of the Karnataka Land Revenue Act, 1964 changed the entries in the revenue records in collusion with the Village Accountant and got half portion recorded in the name of defendant No.1 and the other half in the names of defendants Nos.2 to 5.

(c) It is contended that the record of rights for the year 1978-79 mentioned the names of Shanmukhangouda, Rudragouda and Basanagouda and therefore, the suit land could not have been mutated only in the names of defendant Nos.1 to 5 excluding the plaintiffs. Therefore, they contended that they are entitled for partition and each of the plaintiffs is entitled for 1/3^rd share. They denied the contention of the defendants that the suit schedule property was acquired by Basanagouda, who is the father of Shanmukhangouda, Rudragouda and Basanagouda. They also contended that since they were not parties to O.S.No.350/1 of 1953-1954, as it was a suit for injunction, it is not binding on them. This was contended in the light of the contention of the defendants that Rudragouda had filed the said suit against the original owners i.e., Rudrappa and Sangappa.

3.(a) The suit was resisted by defendant No.1 contending that all the sons and daughters of Shanmukhangouda and Basanagouda are not made parties to the suit and the suit suffers from non-joinder of necessary parties.

(b) Defendant No.1 further contended that long back there was oral partition between Shanmukhangouda, Rudragouda and Basanagouda and in the said partition, Shanmukhangouda and Basanagouda were allotted the properties bearing Sy.No.20/2, hissa 2+6 and Sy.No.20/2, hissa 4.

(c) By virtue of the said partition, the suit survey number was allotted to the share of Rudragouda and therefore, the contention of the plaintiffs that the suit schedule property was not subject matter of the earlier partition is false and not sustainable.

(d) Thirdly, they contended that plaintiff Nos.1 and 2 had filed O.S.No.44/1967 for partition and the s