Code of Civil Procedure, 1908 – s.96 and Or.41,r. 31 – Respondent no.1 (original plaintiff) filed a suit for partition of certain properties against appellant (defendant no.1), respondent no.2 (defendant no.2), and original defendant no.3-father – Respondent no. 1 pleaded that suit properties were purchased ostensibly in the name of the appellant, however, the said properties were purchased from joint family funds – The appellant/defendant no.1 denied that suit properties were purchased by family from joint family funds or they belonged to the Joint Hindu family and submitted that he was absolute owner thereof since he had purchased it out of his own funds – Trial Court found it in favour of respondent no.1/plaintiff and partitioned the suit properties amongst the parties – High Court upheld the findings of the Trial Court – Review Petition was rejected – On appeal, held: The first appellate court must analyse the entire evidence produced by the concerned parties and express its opinion in the proper sense of the jurisdiction vested in it and by elucidating, analysing and arriving at the conclusion that the appeal is devoid of merit – In the impugned judgment High Court after reproduction of the submission made by the parties, straightaway proceeded to affirm the opinion of the Trial Court – Appellant has also raised formidable issues on facts as well as on law which ought to receive proper attention of the High Court, the first instance in exercise of powers u/s.96 of CPC – Additionally, some of the documents which were crucial, were not exhibited although the same were submitted during the trial – Thus, parties relegated before the High Court for consideration of the first appeal afresh.
Allowing the appeal, the Court
HELD : 1. After cogitating over the rival submissions made during the elaborate arguments by the respective counsel and who had invited our attention to the pleadings and evidence on record, this Court deem it to appropriate to relegate the parties before the High Court for consideration of the first appeal afresh. It is said so for more than one reason. The first is that, the High Court has disposed of the first appeal by a cryptic judgment. For, the first five paragraphs of the impugned judgment are only reproduction of the submissions made by the counsel for the concerned parties. After doing so, the High Court straightaway proceeded to affirm the opinion of the Trial Court that the suit properties forming part of Schedule A and Schedule B to the plaint, are the joint family properties. [Para 16] [878-G; 879-A-B]
2. In the present case the suit came to be filed by the respondent No.1 as back as in 1982 and that the present appeal has remained pending in this Court from 2009, against the impugned judgment of the High Court. This Court was at one stage persuaded to consider and examine the matter on its own merits instead of relegating the parties before the High Court. But, it is noticed that the appellant has raised formidable issues on facts as well as on law which ought to receive proper attention of the High Court, in the first instance in exercise of powers under Section 96 of CPC. Additionally, the High Court will have to address the grievance of the appellant that some of the documents, which in the opinion of the appellant are crucial have not been even exhibited although the same were submitted during the trial, as noted in the written submissions filed by the appellant. Therefore, this Court does not wish to deviate from the consistent approach of this Court in the reported cases that the first appellate court must analyse the entire evidence produced by the concerned parties and express its opinion in the proper sense of the jurisdiction vested in it and by elucidating, analysing and arriving at the conclusion that the appeal is devoid of merit. [Para 18] [881-F-G; 882-A-C]
C. Venkata Swamy v. H.N. Shivanna (Dead) by Legal Representative & Anr. (2018) 1 SCC 604 : [2017] 12 SCR 1 ; Madhukar & Ors. v. Sangram & Ors. (2001) 4 SCC 756 : [2001] 3 SCR 138 ; Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh (1969) 1 SCC 386 : [1969] 3 SCR 245 ; G. Narayana Raju
(dead) by his Legal Representative v. G. Chamaraju & Ors. AIR 1968 SC 1276 : [1968] SCR 464 ; Appasaheb Peerappa Chamdgade v. Devendra Peerappa
Chamdgade and Ors. (2007) 1 SCC 521 ; V.D.
Dhanwatey v. Commissioner of Income Tax, M.P., Nagpur [1968] 2 SCR 62 ; Santosh Hazari v.
Purushottam Tiwari (2001) 3 SCC 179 : [2001] 1 SCR
948 ; U. Manjunath Rao v. U. Chandrashekar and Another (2017) 15 SCC 309 : [2017] 7 SCR 608 ; H.K.N. Swami v. Irshad Basith (Dead) by Lrs. (2005)
10 SCC 243 ; State Bank of India and Another v. Emmsons International Limited and Another (2011) 12 SCC 174 : [2011] 10 SCR 436 ; Kurian Chacko v. Varkey Ouseph AIR 1969 Kerala 316 ; Jagannath v. Arulappa and Another (2005) 12 SCC 303 ; B.V. Nagesh and Another v. H.V. Sreenivasa Murthy (2010) 13 SCC
530 : [2010] 11 SCR 784 ; Union of India v. K.V. Lakshman and Others (2016) 13 SCC 124 : [2016]
5 SCR 622 – 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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