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Vinod Kumar vs Gangadhar on 13 October, 2014
9. We have considered the submissions made
on both sides and have scanned the record. We are
conscious of the fact that first appeal is a valuable
right of the appellant and all the questions of fact and
law decided by the Trial Court are open for
reconsideration and the Court should deal with all the
issues and the evidence led by the parties before
recording its findings (See B.M.Narayana Gowda Vs.
14
Shantamma, (2011)15 SCC 476; and Vinod Kumar Vs.
Gangadhar (2015)1 SCC 391)
Shivappa Fakirappa Shetsanadi vs Kannappa Mallappa Shetsanadi on 27 May, 1987
We are in agreement with the
view taken by the Division Bench in Shivappa
Fakirappa Shetsanadi's case (supra). Therefore
occupancy rights granted in favour of defendant Nos.2
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to 5 shall enure to the benefit of plaintiffs. Accordingly,
the third issue is answered.
Section 96 in The Code of Civil Procedure, 1908 [Entire Act]
Rajendra Tiwary vs Basudeo Prasad & Anr on 9 November, 2001
14. Now, we may advert to the question of
grant of relief of partition by the trial court.
Admittedly, the plaintiffs had filed the suit seeking the
relief of declaration with regard to their joint
ownership in respect of the land in question and for
permanent injunction restraining the defendants from
ousting the plaintiff from the joint possession.
However, it is pertinent to note that the Trial Court,
while decreeing the suit, has granted a decree of
declaration that the plaintiffs are joint owners of the
suit land. However, by exercising power under Order
VII Rule 7 of the Code of civil Procedure, relief of
partition has been granted and it has been held that
the plaintiffs are entitled to get half share in the suit
property and it has been directed that the partition
shall be effected under section 54 of the Code of Civil
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Procedure by appointment of a Court Commissioner.
The Supreme Court in Rajendra Tiwary Vs. Basudeo
Prasad and Another reported in AIR 2002 SC 136,
while dealing with the scope and ambit of Order VII
Rule 7 of the Code of Civil Procedure, has held that
where the relief prayed for in the suit is a larger relief
and if no case is made out for granting the same but
the facts, as established, justify granting of a smaller
relief, Order VII Rule 7 permits granting of such a
relief to the parties; however, under the said
provisions, a relief larger than the one claimed by the
plaintiff in the suit cannot be granted.
B.M.Narayana Gowda vs Shanthamma(D) By Lrs And Anr on 20 April, 2011
9. We have considered the submissions made
on both sides and have scanned the record. We are
conscious of the fact that first appeal is a valuable
right of the appellant and all the questions of fact and
law decided by the Trial Court are open for
reconsideration and the Court should deal with all the
issues and the evidence led by the parties before
recording its findings (See B.M.Narayana Gowda Vs.
14
Shantamma, (2011)15 SCC 476; and Vinod Kumar Vs.
Gangadhar (2015)1 SCC 391)
Section 54 in Karnataka Land Reforms Act, 1961 [Entire Act]
1