Heard learned counsel for the parties.
The suit for partition, possession and mesne profits filed by
Hanumanthappa Fakkirappa Bhairappanavar, who is now represented by his L.Rs.
was dismissed by the Trial Court by recording a finding that the plaintiff has failed to
prove that his family and defendants are still a joint family; that plot Nos. 1, 2 and 3
were purchased from joint family funds and that V.P.C. No. 276 house was
constructed on it out of joint family funds. The Trial Court further held that a
partition had taken place in the family in 1950 which was reduced in writing in the
year 1960 and that the disputed properties are self acquired properties of defendant
no.1. On appeal, the High Court reversed the findings recorded by the Trial Court
and decreed the suit.
From a bare perusal of the impugned order, it is clear that while reversing
the order of the Trial Court, the High Court has taken into consideration only two
documents i.e. Exhibits P-21 and P-22 and ignored other documentary as well as oral
evidence adduced by the parties.
...2/-
It is well-settled that while exercising the power of the first appellate court
which is the final court of fact, the High Court is obliged to consider the entire oral
and documentary evidence produced by the parties and record independent findings
on all the issues. Since, in the present case, the High Court has failed to consider the
evidence produced by the parties in its entirety, the impugned order is liable to be set
aside.
Accordingly, the appeal is allowed, impugned order is set aside and the
matter is remitted to the High Court for fresh disposal of the appeal in accordance
with law.
No costs.
[G.S. SINGHVI] New Delhi, March 31, 2009.