Parties in a partition suit must be allowed to present necessary evidence for fair adjudication; failure to provide such opportunity warrants remand.

JUDGMENT

1. This matter is listed for admission. Heard the learned counsel for the appellant and also the counsel appearing for respondents.

2. The factual matrix of case of plaintiff/appellant before the Trial Court in O.S.No.127/2006 seeking the relief of partition and separate possession. It is contended that one Hanumanthappa who is the grand father of the plaintiff had three brothers, first one is Kariyappa, who died leaving behind two sons who are defendant Nos.2 and 3, second brother by name Hanumantharayappa and Eranna. Nagaraju @ Naganna, who are defendant Nos.4 to 6. The third brother Eranna is no more and he has no legal heirs. The plaintiff and defendants are constituted Hindu Undivided joint family, the suit schedule properties are Hindu undivided joint family properties of plaintiff and defendants. The defendants all together in order to cause loss and injustice to plaintiff, created an unregistered partition deed, in which they allotted little extent of 20 guntas of land to the first defendant, who is the father of the plaintiff in Sy.No.19 of Mallikapura village. In fact the first defendant has got right to one third share out of total extent of 12 acre 25 guntas. There is clear imbalance of partition of this property and the defendants all together have not allotted any share in other items of the suit schedule to the first defendant, which also caused very much injustice to the plaintiff and as per the illegal and improper partition, a mutation order also passed to change the khata and pahanies in the name of the first defendant mentioned as Hanumajja against whom 20 guntas is mentioned, which is illegal mutation order and these are other lands in which no share is allotted to the father of the plaintiff and it is contended that they caused injustice to the plaintiff and hence, the suit is filed for the relief of partition and separate possession of his proper and lawful share in the suit schedule properties.

3. It is also contended in the plaint that partition deed dated 21.12.2000 is illegal and imbalance share was allotted to defendant No.1. On the other hand, consequent upon appearance made by the defendant contended that there was already a oral partition between grand father of plaintiff and father of defendants and they were residing separately with their respective share as described in paragraph No.6 of the written statement and also contended that father of the plaintiff has sold Sy.No.9 in favour of defendant Nos.2 and 3 under registered sale deed dated 15.04.1971. The defendant No.2 sold the property in favour of the defendant No.7, the same is also not binding.

4. The Trial Court having considered the pleadings of the parties, framed the issue as whether the plaintiff is also entitled for a share in the suit schedule property and whether the sale transactions are binding and whether the properties are the undivided joint family properties. The Trial Court has given opportunity to both the parties to lead evidence and accordingly the plaintiff examined as PW1 and got marked 13 documents as Ex.P1 to Ex.P13. In order to prove the contention of the defendants, the defendant No.2 himself is examined as DW1 and defendant No.6 examined as DW2, defendant No.7 examined as DW3 and in total produced 21 documents and the same are marked as Ex.D1 to Ex.D21.

5. The Trial Court having considered the material available on record, answered both the issue Nos.1 and 2 as affirmative in coming to the conclusion that properties are undivided joint family properties and also partition dated 21.12.2000 is illeg