Appeal – Second Appeal – Suit for partition – Objection of appellant-defendant that since plaintiff Nos.4 to 8, whose claim was denied by the trial court and who had not challenged the same by way of appeal, were not entitled to relief in second appeal – Held: In a suit for partition, the position of the plaintiff and the defendant can be interchangeable – Each party adopts the same position with the other parties – So long as the suit is pending, a defendant can ask the Court to transpose him as a plaintiff and a plaintiff can ask for being transposed as a defendant – In that view of the matter, the contention with regard to plaintiff Nos.4 to 8 being not entitled to relief in the second appeal on the ground that they have not challenged the judgment and decree of the trial court before the First Appellate Court, is not sustainable – Trial court could grant relief even to the non-appealing plaintiffs and make an adverse order against all the defendants and in favour of all the plaintiffs – Merely because the trial court had not granted relief in favour of plaintiff Nos.4 to 8, would not come in their way in the High Court allowing their claim.
Code of Civil Procedure, 1908 – Second appeal arising from a suit for partition – Interference by High Court – Propriety – Held: On facts, the First Appellate Court had reversed the findings recorded by the trial court which were based upon correct appreciation of evidence – High Court gave sound and cogent reasons as to why interference with findings of the First Appellate Court was required – Also, the First Appellate Court failed to take into consideration the voluminous oral as well as documentary evidence, on basis of which the trial court had recorded its findings – Findings as recorded by First Appellate Court were based on conjectures and surmises – As such, the perverse approach of First Appellate Court in arriving at the findings gave rise to a substantial question of law, thereby justifying the High Court to interfere with the same.
Bhagwan Swaroop and Others v. Mool Chand and
Others (1983) 2 SCC 132; Dr. P. Nalla Thampy Thera v. B.L. Shanker and Others 1984 (Supp) SCC 631 : [1984] SCR 687 and Chandramohan Ramchandra Patil and Others v. Bapu Koyappa Patil (Dead) Through LRs and Others (2003) 3 SCC 552 : [2003] 2 SCR 203 – relied on.
Municipal Committee, Hoshiarpur v. Punjab State Electricity Board and Others (2010) 13 SCC 216
: [2010] 13 SCR 658; Illoth Valappil Ambunhi (D) By LRs. v. Kunhambu Karanavan 2019 SCC OnLine SC
1336; K.N. Nagarajappa and Others v. H. Narasimha Reddy 2021 SCC OnLine SC 694 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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