Karnataka High Court
Phakeerappa Dead By Lrs vs Rudrappa on 27 September, 2022
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO. 2074 OF 2015(PAR)
BETWEEN:
PHAKEERAPPA DEAD BY LRS
1. DEVENDRAPPA
S/O LATE PHAKEERAPPA
AGED ABOUT 56 YEARS
2. DHARMAPPA
S/O LATE PHAKEERAPPA
AGED ABOUT 54 YEARS
3. BASAPPA
S/O LATE PHAKEERAPPA
AGED ABOUT 52 YEARS
4. RAJAPPA
S/O LATE PHAKEERAPPA
AGED ABOUT 44 YEARS
5. ASHOKA
S/O LATE PHAKEERAPPA
AGED ABOUT 20 YEARS
6. RAMESH
S/O LATE PHAKEERAPPA
AGED ABOUT 36 YEARS
2
7. DEVARAJ
S/O LATE PHAKEERAPPA
AGED ABOUT 36 YEARS
ALL ARE RESIDENTS OF SAMPAGODU VILLAGE
KUPPAGADDE HOBLI
SORAB TALUK-577429
8. VIMALAMMA
W/O KRISHNAPPA
AGED ABOUT 52 YEARS
R/O HOSALLI VILLAGE
KUPPAGADDE HOBLI
SORAB TALUK-577429
9. CHANDRAMMA
W/O GANAPATHAPPA
AGED ABOUT 50 YEARS
R/O BILAVEGODU VILLAGE
KUPPAGADDE HOBLI
SORAB TALUK-577429
10. CHANNAMMA
W/O REVANAPPA
AGED ABOUT 49 YEARS
R/O KUPPAGADDE VILLAGE
SORAB TALUK-577429
11. SHARADAMMA
W/O ESHWARAPPA
AGED ABOUT 33 YEARS
R/O BINNUR VILLAGE
CHANDRAGUTTI HOBLI
SORAB TALUK-577429
KERIYAPPA SINCE DECEASED BY HIS
LEGAL REPRESENTATIVES
3
12. SMT. KEREDEVAMMA
W/O LATE KERIYAPPA
AGED ABOUT 72 YEARS
AGRICULTURIST
R/O SAMPAGODU VILLAGE
SORAB TALUK-577429
13. SMT. YASHODA
W/O NAGARAJ
AGED ABOUT 57 YEARS
R/O TELAGUNDI VILALGE
SORAB TALUK-577429
14. SHANMUKHAPPA
S/O LATE KERIYAPPA
AGED ABOUT 53 YEARS
AGRICULTURIST
R/O SAMPAGODU VILLAGE
SORAB TALUK-577429
15. SMT. RATHNAMMA
D/O LATE KERIYAPPA
AGED ABOUT 50 YEARS
HOUSE HOLD WORK
R/O TAVANANDI VILLAGE
SORAB TALUK-577429
16. CHANDRAPPA
S/O LATE KERIYAPPA
AGED ABOUT 47 YEARS
AGRICULTURIST
R/O SAMPAGODU VILLAGE
SORAB TALUK-577429
17. SHANKAR MURTHY
S/O LATE KERIYAPPA
AGED ABOUT 43 YEARS
AGRICULTURIST
4
R/O SAMPAGODU VILLAGE
SORAB TALUK-577429
...APPELLANTS
(BY SRI.R GOPAL, ADVOCATE)
AND:
RUDRAPPA
S/O DYAVANAIKA
AGED ABOUT 33 YEARS
AGRICULTURIST
R/O SAMPAGODU VILLAGE
SORAB TALUK-577429
...RESPONDENT
(BY SRI.P.D.SUBRAMANYA, ADVOCATE FOR
SRI.V.THUKARAMA RAO, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 01.10.2015 PASSED IN
RA.NO.28/2009 ON THE FILE OF THE I ADDL. DISTRICT JUDGE
SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 22.01.2009 PASSED IN
OS.NO.26/2007 ON THE FILE OF THE CIVIL JUDGE, (SR.DN.) AND
JMFC, SORAB.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.09.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
5
JUDGMENT
The captioned second appeal is filed by the legal heirs of defendant No.1 questioning the concurrent findings of the Courts below wherein both the Courts have decreed the suit filed by the plaintiff and have cancelled the registered partition deed dated 22.06.1965 and consequently, plaintiff is allotted half share in the suit schedule property.
2. For the sake of brevity, the parties are referred to as per their rank before the Trial Court.
3. The family tree of the parties is as under:
Bharamappa (Dead) |
----------------------------------------------------
| |
Rudranaika Veerabasappa(Dead)
(Died earlier to 1940 as per plaint) |
| |
-------------------------------- -----------------------------------
| | | |
1st Wife 2nd Wife Phakeerappa Keriyappa
Dyavanaika Dyavamma (Def No.1) (Def No.2)
(Died on 22.2.78 (Dead by LRs) (Dead by LRs)
as per para 2 of
plaint & para 2 of chief
of PW1)
6
|
---------------------------------------------------------------------------
| | | | | Chowdamma Shantamma Rudrappa Savitramma Renukamma (Not party) (Not party) (Plaintiff) (Not party) (Not party)
4. The plaintiff represent the branch of Rudranaika while defendants represent the branch of Veerabasappa. The present suit is filed by the plaintiff questioning the partition deed dated 22.06.1965. It is the specific case of the plaintiff that one Bharmappa is the original owner and propositus of plaintiff and defendants had two sons by name Rudranaika and Veerabasappa. The plaintiff claimed that suit schedule properties are joint family ancestral properties of plaintiff and defendants. The plaintiff has specifically pleaded that on account of illiteracy of plaintiff's father, the defendants' father and the present defendants have executed an illegal partition deed. The plaintiff claims that the said partition deed though executed 30 years back is not acted upon till today. The plaintiff has further pleaded that he requested the jurisdictional Tahsildar to effect changes in the katha in 7 respect of Sy.No.17 as a legal heir of deceased Dyavanaika. The plaintiff claimed that Tahsildar made an order stating that the dispute revolves around the partition deed and therefore, the same cannot be adjudicated in the revenue proceedings. The plaintiff came to know about the said partition deed only when the order was passed by the Tahsildar. The plaintiff also alleges that there was interference by the defendants. Basing this as cause of action, the present suit is instituted questioning the partition deed and is also seeking share in the suit schedule property.
5. The defendants contested the proceedings by filing written statement. The defendants claimed that there is already severance in the family as coparceners have resolved to effect partition under partition deed dated 22.06.1965. The defendants also claimed that insofar as item No.3 is concerned, it is the self acquired property and hence, prayed for dismissal of the suit.
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6. The parties have let in evidence to substantiate their respective claims.
7. The Trial Court on examination of partition deed dated 22.06.1965 has come to conclusion that the said partition deed would not bind the plaintiff. The Trial Court was also of the view that admittedly, the plaintiff's branch had half share in the suit schedule property but under the partition deed dated 22.06.1965, the suit properties are divided in three parts. It is in this background, Trial Court was of the view that father of plaintiff in fact had half share in the suit schedule properties but under the registered partition deed dated 22.06.1965 vide Ex.P-2, plaintiff's father was allotted lesser share while defendants' branch who also had half share, has ended up taking 2/3rd share. The Trial Court has come to conclusion that the partition deed is therefore null and void and not binding on plaintiff's right.
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8. The second ground on which Trial Court was inclined to declare the partition deed as null and void was that though there was partition in the family on 22.06.1965, there is no severance and the said partition deed dated 22.06.1965 was never acted upon. The Trial Court has placed reliance on Exs.P-2 and D-3 while arriving at the said conclusion. The Trial Court found that in terms of partition deed, the names of the plaintiff and defendants were mutated only in the year 2007. On these set of reasonings, the Trial Court decreed the suit thereby canceling the partition deed dated 22.06.1965 and consequently, granted half share to the plaintiff.
9. Feeling aggrieved by the judgment and decree of the Trial Court, the legal heirs of defendant No.1 preferred appeal in R.A.No.28/2009.
10. The Appellate Court on re-appreciation of oral and documentary evidence held that the partition deed though is of the year 1965 was never acted upon. The Appellate Court 10 was of the view that the partition effected between plaintiff's father and father of defendants was found to be detrimental to the interest of plaintiff's father. The Appellate Court was of the view that even if plaintiff's father has not questioned the partition deed, his son can very well question the partition deed. To support its reasonings, the Appellate Court has placed reliance on the judgment rendered by this Court in the case of A.Ganapathi Nayak Vs. Devanatha1. The Appellate Court went one step further and held that there is no need to challenge the partition deed as it was never acted upon and an adverse inference was also drawn by the Appellate Court on the ground that defendants based on 1965 partition, have not got their names mutated to the revenue records and therefore, the Appellate Court has also recorded a finding that partition deed was never acted upon and therefore, even if 1965 partition is questioned in 2007, the Courts are not precluded from examining the injustice which was meted out to the plaintiff's father in 1965 partition. On these set of 1 ILR 1999 Kar 613 11 reasonings, the Appellate Court has proceeded to concur with the findings and conclusions recorded by the Trial Court. Consequently, appeal is dismissed.
11. These concurrent findings are under challenge by the legal heirs of defendant No.1.
12. This Court vide order dated 21.07.2016 has admitted the appeal on the following substantial questions of law:
"1) Were the Courts below justified in decreeing the suit of the plaintiff for partition and separate possession of half share, when plaintiff-PW.1 has admitted that there was a partition on 22.06.1965 as per Ex.P2-copy of Hissapathra?
2) Were the Courts below justified in decreeing the suit of the plaintiff for partition, when the plaintiff has not challenged Ex.P2 Hissapathra dated 22.06.1965 within three years as contemplated under Article 59 of the Limitation Act?12
3) Whether the lower Appellate Court is justified in confirming the judgment and decree of the Trial Court without following the mandatory procedure as contemplated under Order 41 Rule 31 of the CPC?
4) Were the Courts below justified in decreeing the suit of the plaintiff holding that registered Hissapathra dated 22.06.1965 cannot be acted upon when the same has been implemented by the Revenue Authorities and entered the names of the persons as per their shares in terms of Ex.P2-Hissapathra?"
13. Learned counsel appearing for the defendants would vehemently argue and contend that initially the suit was filed seeking cancellation of registered partition deed dated 22.06.1965 and a further relief of declaration was sought to declare that plaintiff and his family members alone have a title and consequently permanent injunction was sought. He would point out that pending suit, an application was filed in I.A.No.2 seeking amendment of plaint to include one more suit item as item No.2 and an alternative prayer for partition and separate possession of half share was sought. The plaintiff also sought 13 subsequent amendment of plaint to add one more property as item No.3. He would further contend that the original prayer sought in the plaint though negatived by the Courts, however, suit was decreed granting alternative prayer of partition and cancellation of partition deed. He would point out that the concurrent findings recorded by the Courts below that the registered partition deed dated 22.06.1965 was not acted upon is perverse and contrary to clinching evidence on record.
14. To counter the conclusions recorded by both the Courts below, he would point out that the very recitals in the registered partition deed vide Ex.P-2 clearly establishes that father of plaintiff and Dyavamma were residing separately and enjoying the properties separately and so also the defendants and their father were residing separately and enjoying the properties allotted to them separately. Therefore, he would contend that the registered partition deed was acted upon and this is elicited in the cross-examination of PW.1 who has 14 admitted in unequivocal terms that in terms of 1965 partition, parties are in possession of their properties. The defendants have further strengthened their defence by examining two independent witnesses who are examined as DWs.2 and 3 respectively aged 75 years and 55 years and both have spoken in support of defendants contention raised in the written statement and have clearly stated that all the parties are in exclusive possession of their respective shares.
15. Learned counsel would further contend that defendants have substantiated their defence by producing the revenue records and pahanis vide Exs.D-31 to 35 for the years 1968-69 to 1972-73. Similarly, Exs.D-11, D-33, D-31 wherein suit item No.1 is standing in the name of father of plaintiff and also defendant Nos.1 and 2 for different extents in terms of registered partition deed and the said extent are clearly reflected in the revenue records which proves the factum of partition.
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16. Learned counsel for defendants has taken a strong objection in the manner in which both the Courts have dealt with the material on record. He would contend that plaintiff was not even born when this registered partition was effected in 1965. Referring to the age as on the date of filing of the suit, he would contend that he was born somewhere in 1973 and attained majority in 1991 while suit is filed in 1998. Therefore, he would contend that suit is filed after 33 years of effecting partition and after seven years of attaining majority and therefore, suit is hopelessly barred as it is not filed within the limitation period of three years of attaining majority. Learned counsel would further contend that plaintiff cannot question the registered partition deed as his father lived till 1978 and the present registered partition was admittedly not between the plaintiff's father and his sons but the partition was in respect of families of different branches and therefore, he has no locus to seek re-opening of partition. 16
17. To buttress his arguments, he has placed reliance on the judgment rendered by the Full Bench of Andhra Pradesh High Court in the case of Katragadda China Anjaneyulu and another vs. Kattragadda China Ramayya and Others2. He has further placed reliance on Division Bench judgment rendered by Mysuru High Court in the case of Veerabhadrappa and Others vs. Lingappa and Others3. Referring to the principles laid down in the above said judgments, he would contend that if allotments are made in a family partition with common consent of coparceners, then the same cannot be questioned subsequently on the ground that there is unequal distribution of the properties so long as there is no proof of fraud, undue influence and misrepresentation and therefore, family arrangement recorded by common consent has to be respected by the Courts. He has also placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Kale and others vs. Deputy Director of 2 AIR 1965 AP 177 (FB) 3 AIR 1963 Mysore 5 17 Consolidation and Others4. Referring to the principles laid down by Hon'ble Apex Court, he would contend that a family arrangement cannot be casually interfered with unless the arrangement suffers from legal lacuna or a formal defect and therefore, rule of estoppel has to be pressed into service and a party cannot be permitted to unsettle the family arrangement.
18. Heard learned counsel for the respective parties. Perused the concurrent findings recorded by the Courts below. Re: Point No.1:
19. Before I advert to the substantial question of law, it would be useful for this Court to examine the registered partition deed vide Ex.P-2. On examining the same, this Court would find that in the said partition, plaintiff's father Dyavanaika, father of defendants Veerabassapa and defendant Nos.1 and 2 and widow of Rudranaika namely Dyavamma are found be parties to the registered partition deed. 4 AIR 1976 SC 807 18 Right of a begotten son or son born after partition
20. The Hindu Law as it stood prior to codification by Hindu Succession Act, 1956, insofar as rights of after born children has been set out in the 22nd Edition of the Hindu law by Mullah as follows:
"309. Son begotten as well as born after partition.- A father separating from his sons, may or may not reserve to himself, a share on partition. The rights of a son born as well as begotten after partition are different, depending upon whether the father has or has not reserved a share to himself.
(1) Where the father has reserved a share to himself, a son who is begotten as well as born after partition, is not entitled to have the partition reopened; but in lieu thereof he is entitled, after the fathers death, to inherit not only the share allotted to the father on partition, but the whole of the separate property of the father, whether acquired by him before or after partition, to the entire exclusion of the separated sons."
21. Therefore, what emerges from the above said commentary is that where a father effects partition with his 19 sons and in the said partition, he relinquishes and does not take any share, a son who is born, as well as begotten after partition, is entitled to have partition re-opened and to have a share allotted to him not in the property as it stood at the time of original partition, but also in the subsequent acquisitions made with the help of that property.
22. There is abundant authority for this proposition. In Venkatapathi Raju vs. Venkatanarasimha Raju5, it was held that a member of Hindu Undivided family governed by Mitakshara law can relinquish his interest therein. A question arose in the said case as to whether separation of one member would affect the status of other members of the family. Answering it in the negative, their Lordships of the Privy Council stated thus:
"It is a settled rule that when the members of a family hold the family estate in defined shares, they cannot be held to be joint in estate. But no definement of shares need take place when, the 5 ILR 1937 Mad 1 20 separating member does not receive any share in the estate but renounces his interest therein. His renunciation merely extinguishes his interest in the estate, but does not affect the status of the remaining members quo-ad the family property, and they continue to be coparceners as before. The only effect of renunciation is to reduce the number of the persons to whom shares would be allotted, if, and when, a division of the estate takes place."
23. This Doctrine of conferring a right on a child born after partition is based on a broader principle that a coparcener may not opt to take any share in the family partition and relinquish his share in the suit schedule properties. Therefore, if coparcener does not opt to take any share in the properties and thereby relinquishes his interest in the co-parcenery property, then it presupposes that it does not affect the status of remaining coparceners vis-à-vis the family partition.
21
24. Therefore, what can be inferred from the above said principle is that where a partition is effected between father and his sons and if father choses not to take any share in the properties, then after born children as well as son begotten before partition can seek re-opening of partition as it affects their rights. Therefore, right to seek re-opening by an after born son depends upon two conditions. Firstly, the partition is between father and his sons and secondly, their father does not retain any share but relinquishes his share. This relinquishment of interest does not amount to partition of the joint family properties. Therefore, where a father does not take any share and relinquishes his share amongst his sons, there is no disruption of joint family. Therefore, a child born after partition or a son begotten before partition and born after partition can maintain a partition suit and seek re- opening of partition provided the above said conditions exist. 22
25. Now let me examine the facts in the present case on hand in the light of the discussion made supra. Admittedly, in the present case on hand, the partition is among two branches i.e., branch of Rudranaika and Veerabasappa. The plaintiff's father Dyavanaika and children of Veerabasappa i.e., defendant Nos.1 and 2 have effected partition amongst themselves and the said partition is recorded under registered partition deed dated 22.06.1965 vide Ex.P-2. In the said partition, the plaintiff's father was allotted 1/3rd share. Therefore, two things emerge from the above said partition.
26. The effect of partition among coparceners is to dissolve the co-parcenery, with the result, that separating members thenceforth hold their respective shares as their separate property and the share of each member will pass on his death to his heirs. However, if a member while separating from his other coparceners continues to be joint with his own male issues, the share allotted to him on partition will in his 23 hands, retain the character of co-parcenery property as regards the male issue. It is also trite law that if during the partition, a coparcener has no heirs and if a son is born, though there is a temporary suspension of co-parcenery, the same stands revived on account of birth of a male heir. Therefore, partition in one sense is a severance of joint status and a coparcener of a co-parcenery is entitled to claim it as a matter of his individual volition. In this narrow sense, all that is necessary to constitute partition is a definite, an unequivocal indication of intention to separate and enjoy their respective shares in severality. Such a unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the co-parcenery with a right of survivors and such separate member holds from the time of disruption of a joint family either as his self acquired property or as a tenant in common. Such a partition has an impact on the devolution of share of such member. It goes to his heirs 24 displacing survivors. Therefore, such partition in respect of whether it is accompanied or followed by a division of properties by metes and bounds covers both a division of right and division of property. A disruption of joint family status by a definite and unequivocal indication to separate implies, separation in interest and in right, although not immediately followed by de facto actual division of the ancestral properties. Once disruption of a joint family status takes place, no longer the co-parcenery exists.
27. In the present case on hand, under the registered partition deed, plaintiff's father represented Rudranaika branch and while defendants represent Veerabasappa branch have effected partition under registered partition deed. Therefore, there is a total disruption of co-parcenery and joint family status between Rudranaika branch and Veerabasappa branch. Therefore, if at all the present plaintiff intends to institute a proceedings and assert his right, he can do it only in 1/3rd share that was allotted to his father under registered 25 partition deed vide Ex.P-2. He cannot include the properties which were allotted to the cousin brothers of his father under registered partition deed way back in 1965. Once there is a disruption, rather division of right and division of property in terms of registered partition deed, plaintiff cannot assert that these properties are joint family ancestral properties and further he cannot claim that he is in joint possession and enjoyment over the properties which was allotted to his father's cousin brothers. All these significant details are not at all examined. The material on record, more particularly the recitals in the registered partition deed clearly indicate that plaintiff's father and his cousin brothers had a definite and unambiguous indication to separate and to enjoy their respective shares independently. Evidence on record reveals that family of plaintiff and defendants have taken fullest measure possible for dividing the joint interest into separate interest. Registered partition deed vide Ex.P-2 is found to be 26 genuine and is shown to be fully effective between the members of the family.
28. The above said partition is not amongst father and sons but it is amongst the cousin brothers representing two branches. A provision is made to the widow Dyavamma. Therefore, in view of registered partition deed, there is complete disruption post registered partition deed and 1/3rd share is allotted to the plaintiff's father and therefore, plaintiff is not entitled to seek re-opening of partition and to claim redistribution of shares.
29. In the present case on hand, plaintiff would succeed only to the share allotted to his father. If there is complete disruption in the family and severance based on registered partition deed, it creates absolute right in favour of defendants. Plaintiff has no locus to file the present suit by claiming that suit schedule properties are joint family ancestral properties and that he is joint possession. The registered 27 partition deed creates absolute right in favour of defendants and by exclusive allotment of definite shares has stood crystallized as plaintiff's father who was very much alive till 1978 never questioned the registered partition deed.
30. Both the Courts erred in not examining the effect of registered partition deed between plaintiff's father and his cousin brothers. Both the Courts have not at all examined the fact that plaintiff's father was allotted a share in the suit schedule properties, to be specific 1/3rd share, in the ancestral properties. If that is so, there is complete disruption on account of registered partition deed in the family of plaintiff and defendants and therefore, plaintiff had no locus to seek re-opening of the partition against the defendants by including the properties which were allotted to Veerabasappa branch. The plaintiff cannot seek re-opening of partition in the properties allotted to defendants. Therefore, the first substantial question of law is answered in the negative. 28 Re: Point No.2:
31. There is no issue relating to limitation and therefore, question of examining as to whether suit was well in time would not arise for consideration. Accordingly, the second substantial question of law does not survive for consideration.
Re: Point No.3:
32. The judgment of the Appellate Court is in contravention of Order 41 Rule 31 of CPC. Section 107(2) of CPC does vest the Appellate Court with some powers that are conferred on Court on original jurisdiction. It is a trite law that it is a bounden duty of the Appellate Court to see whether the evidence taken as a whole can reasonably justify the conclusion which the Trial Court arrived at or whether there is an element of improbability arising through a number of circumstances which in the opinion of the Court outweighs such finding. Though the First Appellate Court has concurred 29 with the findings of the Trial Court, it is still incumbent on the part of the First Appellate Court to formulate proper issues that would arise for consideration in the light of the grounds urged in regular appeal. The legislature has entrusted a very important duty to the First Appellate Court and it is for Appellate Court to decide finally all questions on facts on which the disposal of the suit might depend. The First Appellate Court has to make an honest endeavor to make a proper apprising of the merits of the case put up by the parties. The First appellate Court being a final fact finding authority has to exhaustively deal with every contention, which would be vital and would have a bearing on the conclusions that are arrived at by the Trial Court. There must be sufficient discussion to show that it has applied its own mind to the evidence. The First Appellate Court has to pronounce the judgment only after applying judicial mind to the appreciation of evidence and thereafter has to manifestly convey the judicial thinking by which it 30 either confirms or reverse with the judgment of the Trial Court. It is a trite law that appeal is a continuation of suit and therefore, the First Appellate Court is under a bounden duty to revisit over the disputed questions of fact and thereafter come to a conclusion. In the process if the First Appellate Court comes to a conclusion that it cannot accept the reasons assigned by the Trial Court, then it can divert with the reasons which are recorded by the Trial Court and while reversing the decree of the Trial Court, it has to attend all relevant questions, which would arise for consideration in the context of issues framed therein and ocular and documentary evidence which would be let in by the parties.
33. It would be relevant for this Court to refer to the principles laid down by the Kerala High Court in the case of Kurian Chacko v. Varkey Ouseph6, while examining the power of the Appellate Court hearing an appeal under Section 96 has held as under:
6
AIR 1969 Kerala 316 31 "Civil P.C. (5 of 1908) S.96, S.107 - Duty of appellate Court to consider evidence independently.
An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him. No supplementing of appreciation is contemplated at the appellate stage. But, an independent appraisal of the evidence is the duty of the Court at that level. Failure to do that is an abdication of appellate power. It is the appellate Court's function not to find out whether there is perversity in the trial Court's judgment but whether it is wrong. There is very wide difference between a wrong conclusion and a perverse conclusion. A restricted revisional jurisdiction may be invoked under certain statutes only where there is perversity in the findings but the wider appellate jurisdiction conferred under Section 96 of the Civil P. C., demands a little more effort on the part of the appellate Court in going into the evidence to come to its own conclusion and reversing the trial Court's decision if it is found to be wrong"
(emphasis supplied) 32
34. The Full Bench of the Hon'ble Apex Court in the case of Santosh Hazari v. Purushottam Tiwari (deceased) by LRs7 has held that the judgment of the First Appellate Court under Section 96 of CPC read with Order XLI Rules 1 and 2 of CPC must display conscious application of mind and record findings supported by reasons on all issues and contentions.
35. The Full Bench of the Hon'ble Apex Court in the case of Madhukar and others v. Sangram and others8 reiterating the principles laid down in the case of Santosh Hazari (supra) has further held that if Court fails to fulfill its obligations, the parties would not get the true benefit of a first appeal, which is a valuable right on the basis of which parties have the right to be heard on questions of law as well as of fact.
7 (2001)3 Supreme Court Cases 179 8 (2001)4 Supreme Court Cases 756 33
36. The Appellate Court has mechanically concurred with the findings of the Trial Court and therefore, the third substantial question of law is answered in the negative.
Re: Point No.4:
37. The clinching evidence on record clearly indicates that, post registered partition deed, the plaintiff's family and defendants' family have enjoyed their respective properties exclusively. The same is admitted by the plaintiff who is examined as PW.1. At para 12, he has stated that the parties are residing separately and they are in exclusive possession in terms of registered partition deed. The rebuttal evidence vide Exs.D-11, 31, 32, 33 and 44 which are the RTCs' and pahanis also indicate that there is severance in the family and plaintiff and defendants are in exclusive possession as absolute owners. Therefore, both the Courts erred in holding that the registered partition deed dated 22.06.1965 vide Ex.P-2 is not 34 acted upon. This finding suffers from serious perversity and the same is contrary to clinching evidence on record.
Therefore, the fourth substantial question of law is answered in the negative.
38. For the foregoing reasons, I pass the following:
ORDER
(i) The appeal is allowed;
(ii) The judgment and decree dated 01.10.2015 passed in R.A.No.28/2009 confirming the judgment and decree dated 22.01.2009 passed in O.S.No.26/2007 is set aside;
(iii) Consequently, suit is dismissed.
Sd/-
JUDGE CA