Somakka (Dead) by Lrs. vs K.P. Basavaraj (Dead) by Lrs.

Court

Supreme Court of India

Date

13 June 2022

Case No.

Civil Appeal No (S). 1117 of 2009

Result

Allowed

Bench

S. Abdul Nazeer, Vikram Nath

Citation

[2022] 17 S.C.R. 668 : 2022 INSC 642

Headnote

Code of Civil Procedure 1908 – s.96 – Or.XLI r.31 – Appellant and respondent are brother and sister – Suit filed by appellant against the respondent inter alia claiming partition and separate possession of one fourth share in properties described as item nos. 1 and 2 (ancestral properties) and one half share in the properties described in item no. 3 of Schedule ‘A’ to the plaint, alleged to be self-acquired property of their father on the basis of occupancy rights – Suit decreed by Trial Court – Respondent filed appeal, High Court held that the appellant was entitled to one fourth share instead of one half share in the property described at item no. 3 of Schedule ‘A’, decree was modified to this extent – Correctness of – Held: High Court in a very cursory and cryptic manner, partly allowed the first appeal – It did not consider the evidence considered by the Trial Court – Neither did it deal with the statements or the other documentary evidence on record and only on a bald statement of the respondent that he was jointly cultivating the land along with his father held that it became a joint family estate and, accordingly, reduced the share of the appellant to one fourth from one half – High Court committed serious error in neither forming the points for determination nor considering the evidence on record, in particular which had been relied upon by the Trial Court – Further, on facts there is no reason to remand the matter to the High Court – Impugned judgment set aside – Judgment and decree of the Trial Court is confirmed to the extent it relates to item no.3 of Schedule ‘A’ property described in the plaint – Thus, the appellant and respondent would be entitled to one half share each in the said property.

Code of Civil Procedure 1908 – s.96 – Or.XLI r.31 – Scope, power and duty of the First Appellate Court – Discussed. Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC

179 : [2001] 1 SCR 948; H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243; Vinod Kumar v. Gangadhar (2015)

1 SCC 391 : [2014] 10 SCR 1050; Manjual and others v. Shyamsundar and Others (2022) 3 SCC 90 – relied on.

Kurian Chacko v. Varkey Ouseph AIR 1969 Ker 316 – approved.

The Judgment of the Court was delivered by VIKRAM NATH, J. 1. The appellant is the own sister of the sole respondent. Their father Puttanna had inherited certain properties from his father which were ancestral properties and are described as item nos. 1 and 2 of Schedule ‘A’ to the plaint, whereas property described at item no. 3 was alleged to be self-acquired property of Puttanna on the basis of occupancy rights. In so far as the property described at Schedule ‘B’, it belonged to the respondent which the appellant claimed to have purchased. 2. The appellant is the plaintiff in OS No. 2506

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