IFJ rHE dIG’-f (OURT Or KARNATAKA v. /F /N I L BHAu: Wi-uJ O At LAKK/ JNEO DA AOD

JUDGMENT AND DECREE DATED: 01.07.2009 PASSED IN 0.S.112/2009 (OLD NO.103/2001) ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN) AND JMFC, HUNSUR, DIRECTING THE LOWER COURT TO DISPOSE OF THE SUIT IN ACCORDANCE WITH LAW. This appeal coming on for admission this day, the Court delivered the following: JUDGMENT This second appeal is directed against judgment In R.A.No. 1273/09 dated 2.9.2011 on the file of the Principal District and Sessions Judge, Mysore setting aside the judgment and decree In O.SNo. 1 12/09 dated 1.7.2009 and remanding the case with a direction to allow the defendant to produce the additional evidence as sought for In his application under Order 41 Rule 27 of CPC.

The appeal has come up for admission. fleard.

The contextual facts to which the learned counsel has adverted to reveal, the respondent in his suit O.S.No. 112/09 sought for partition of properties described in the schedule to the plaint on an 4 assertive contention that the properties are joint family properties In which he has 1/6th share. Six items of properties were shown in the schedule and also amount in deposit with Canara Bank. Betradapura Branch. He claimed I /6t share In the immovable properties awl liquid cash asserting that he and the defendants are proximately related. While he and the second defendant are genetic brothers. the first defendant is their uncle and defendants 3 to 5 are his cousins. In the year 1984 they had partitioned some of the properties before the Panchayath and incorporated the in the panchayath palupatti. Thus. they are In possession and enjoyment In terms thereof.

He alleged his uncle S.J.Lakkegowda died on

1.10.98 leavIng behind no legal heirs. The property. which had fallen to his share in the family partition, was thus divisible amongst them since he had no legal heirs left behind. This ‘as the basis to seek 1/6” share In the property. (0

In the stilt itself, he had avened that S.J. Lakkegowda had not executed any Will or deed of settlement and therefore the properties were available division reversion sun’iving coparceners.

In the suit. respondents-defendants 3 to 5. viz., Rajashekar, Melaglrlgowcla and Eshwara. denying the averments in the plaint, assertively contended that Lakkegowda had, during his lifetime, executed will and last testament, bequeathing the properties received by him in the partition as his share in their favour. They thus claimedto be legatees under the will and sought to negate the contention of the plaintiff that upon death of Lakkegowda. his share is divisible among the surviving coparceners.

It Is seen from the finding of the trial court there is no dispute regarding genetic relationship between the panics. It is also not. in dispute that the proposit us had left behind several propeflies which C. ft ‘ugh tfl ibic ctfl. (’h’L tIl( 1 fl ‘tl’1t ‘(II ‘ , r4 gj ‘ II 1 ‘ 1(4 • I 1 lL( .t t - 4 I h th 1. I j)L I i’’ti 1\ • ) I I u Iii ‘- Iii t1 ‘ t1i b’; ‘ri A t. 1 .1 — r t r €u. ‘ ik iflOl’ Iflotil it’ vrxd h’ 1 iick aud t . t allotnwni in Ih1 Fn.iii 1’ Mi f)A I Jots ‘- 1. Ic ii hit (i p dge (hi hnccl t; ars’I-a1 t)fltt 1a1(’a -,i iii d’ I:...1 za n the cm IC h t.mJ kit ift hail ‘ I 1) ot I (C I m d i nn 1 t shnw h t 11k’citnvt’ihitl h’(hIIIF.( iI ,- n I ‘ii ‘1LI_” iii it t a nile 1j rL’w - I L • h (I ‘ I C’bI%1 I( — q• iii. •g)1 — ivi •r ‘d’u ii.i ‘J- a • .•.. I b •• a it ‘A •‘iflI ‘ t • ( • I I 7 had acquired property from MIJDA. Learned appellate judge also noticed that the trial court had answered the issued regarding existence of will in favour of the defendants in the negative on the ground all suspicious circumstances were not acceptable evidence. Consequently. learned appellate judge has allowed the application filed by respondents-defendants under Order XLI Rule 27, C.P.C. and permitted them to lead further evidence. To enable them to do so. the case has been remanded to the trial court. removed

The grievance of the appellants In this appeal is, the appellate Court being the final Court on facts should have examined the evidence on record and reached a just conclusion by itself. lf it was of the opinion that some material evidence has not been considered in correct perspective or appellate Court should have exercised jurisdiction conferred on it for re-appraisal of evidence and passed appropriate orders giving final decision rat her than remanding the matter to the trial Court. He seeks to ignored. (“I ‘1 S it’c ci’ I 1 11’, 01 ‘‘ I!’ ‘.‘ • ‘4 V•V. 1 i1.\ ELR si—I’’. .\ K’ JV\ \HDJIV\ArII’RI 1IIP 1 ‘i K 1 1 .7 t14t 1111011 N clrtwii in miii lo jlOI I 11 (ii iii’ ,latiL’1T;’ dl. v’luc l V l tj q I Aai V)tili )11L’r lu C •lt.s 11

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11w proposition of law canvas%eci by the learned t’ouzmel for the appellant 011 the hails of tht dee1slon referr I to supra 110 dout proposi i Xl 2 Wh p cia lies the Junsdlciion conferred Oh the firq appellate noun anti the manner in which such power Is to be exercised. The decision spells out first appellate cour o respon Ii In isina m es that ppc-llate n-I shall n app:aicc ‘‘denee n ‘U cIsPb ullk%s clrcun1%1-aflc c’ t ‘iurnerale•cJ in R’ilt 2-1 anc , of Ord -c’)rd and tithe all (‘J e milc In tl 1-4 1(11 Is ‘11 4k 1 . iii alit pit’’ U t1 th fact S tilt t1071 1% .ifitittttt 1’ iris t ‘l” tiCC’i I lii the fart’, LllhIle, ‘rud ‘— n ii a t 1,1 ‘ t a nrc ins ‘,utfi i.’nt Dl titlil’ tiilii ) (((ii i lit i)1%1%

1 ‘vh1i tin t ru ‘ ( t it ii ‘ Cit ti t ilnd’.Lt ihe iirst ippc llat’ ir I d ii 10 1 ( ain Pith, ihtti1ti tile iii dinp 4 ri iii nit us alit tnt 1 o cornet ‘li)Pr(clIUn ci C t (.1 riot and uitiv iat (in .ae ISS’If s 1ns d t.ji record ‘cordir L it% ‘‘1 1 ubng en at d

1 h • a. to tiI( irt. ‘ • un settinc •i’i(t’ tit jaid_in (Ill that S iih ‘Fib un 111% appi v” I’ll I r mar’c1 i) tin its’;’’) r• ..‘i it rh’tr nil it ‘so i tel ci be ialn’i I, ich - Iii ‘1 h1 ‘U I t I. t II t j’t t C d’t) r : i • I • f_i 1 1 (t .C J I’ t [‘0h11( it • i Lr ‘ ‘ i , • •Vl’4(f •J• •7ljJ ‘1,, S I fi 1t .‘ ci ‘ ) 11 • t ‘hr — I • a • •t I , 12 plea they were able to secure documents which were relevant and germane to support their contention and such documents were secured only afier rendition of judgment by the trial court. in this view, the question before appellate court was, whether respondents-defendants had made out a casc for permitting them to produce additional evidence. To decide that issue, learned appellate judge has examined the entire evidence and opined that respondents- defendants had substantially proved that the additional evidence they sought to produce was not available when trial was going on before the trial court, and In this view, thought lit to grant them relief under Order XLI Rule 27, C.P.C. to lead evidence. Consequently, appellate court thought fit to remand the maker with permission to produce additional evidence.

It must further be noticed first appellate court has confirmed the finding of the trial court on other issues. Thus the order of the appellate court remanding the case to the trial court cannot bc faulted. The S 13 consequence of such order Is, In remand proceedings, respondents-defendants are pennitted to lead only additional evidence to the limited extent of supporting their contention that property No.77/2 allotted by MUDA to Lakkegowda must also be the subject matter of adjudication. Consequently, when the respondents- defendants produce such material evidence, the plaintiff will also be entitled to lead evidence In rebuttal to aid the trial court In reaching a final decision with regard to the relevant Issue. Thus, the Impugned order passed by the appellate court has not prejudiced the appellant- plaintiff In any manner.

In this view, I find no merit In the appeal. The appeal Is dismissed. JUDGE *alb/ & vgh*