ORDER

This appeal is filed by defendant No.1 challenging the judgment and decree dated 01.02.2023 passed in R.A.No.41/2020 by the Senior Civil Judge & JMFC, Channarayapatna, thereby the First Appellate Court remanded the matter to the trial Court for fresh consideration.

2. The ranking of the parties are referred to as before the Trial Court for convenience and easy reference.

3. Brief facts of the case are that the plaintiff, defendant No.1 and the husband of defendant No.2 are the brothers and children of Huchhamma. Originally the family of plaintiff and defendants have joint family property and they have no ancestral properties from their father. The land bearing Sy.No.106 measuring 4 acres of Valagerahalli has been granted by the Government in favour of mother of plaintiff by name Huchhamma about 50 years back. From the date of order of grant, the plaintiff, their mother and defendants were in joint possession and enjoyment of the same. About 20 years back the mother of plaintiff has effected partition and allotted 1 acre of property each to the plaintiff, defendant No.1 and to the husband of defendant No.2 by name Chikkegowda. The remaining 1 acre of land left out was retained by her for her maintenance. The said one acre of land is the suit property and subject matter of the present case. The said one acre of land was in possession and enjoyment of mother Smt Huchhamma. The mother was expired about one month prior to filing of this suit. Till today the plaintiff and defendants are in joint possession and enjoyment of suit property and plaintiff has 1/3rd share in the same.

4. The plaintiff filed a suit for partition in respect of property in Survey No.106/p3 measuring 1.00 acre against the defendants. The plaintiff contended that there is no partition in the family, therefore, he is entitled for share in the property. Hence, he filed the suit for partition. The defendants entered into the suit and submitted that there is already partition in the family as per Ex.D.8-Palupatti reported before the panchayath. The trial Court after accepting Ex.D.8-Palupatti has dismissed the suit of the plaintiff. The plaintiff has challenged the judgment and decree passed by the trial Court before the first Appellate Court. The first Appellate Court has observed that what Ex.D.8-palupatti relied on by the defendants is not a registered document. Further more, according to the said Ex.D.8-palupatti, there was unequal partition and third son is excluded. Furthermore, in the said palupatti, the appellant (defendant No.1) was given major share of 2 acres of land out of total 4 acres of land. Therefore, the first Appellate Court has remanded the matter to the trial Court for fresh consideration with a direction to appreciate the evidence on record on all the issues and accordingly, remanded the matter.

5. The trial Court has not considered the facts and circumstance on record correctly. The trial Court has just swayed away by Ex.D.8-palupatti by forming an opinion that there is already partition deed and dismissed the suit. But upon considering the same, the said Ex.D.8- palupatti is not a registered document. Furthermore, third son is excluded from the said palupatti. The appellant (defendant No.1) was given major share of 2 acres of land by virtue of said Ex.D8-palupatti. Why such major share is given excluding third son, even though, he is entitled for share in the property is not explained in the palupatti. With all these observations, the first Appellate Court has rightly come to the conclusion that proper appreciation of evidence is required and accordingly, remanded the matter to the trial Court. It is the observation made by the first Appellate Court that there is no equal share in the property of the family and defendant No.1 has played a prominent role and was successful in getting major share in the property.

6. Therefore, upon considering all these facts and circumstances on record, the first Appellate Court is correct in remanding th