AZGAR BARID (D) BY LRS. versus MAZAMBI @ PYAREMABI AND OTHERS

Citation: [2022] 3 S.C.R. 1099 · Decided: 21-02-2022 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Dismissed

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Judgment (excerpt)

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1099
[2022] 3 S.C.R. 1099
1099
AZGAR BARID (D) BY LRS.
v.
MAZAMBI @ PYAREMABI AND OTHERS
(Civil Appeal No. 249 of 2010)
FEBRUARY 21, 2022
[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]
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
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SUPREME COURT REPORTS
[2022] 3 S.C.R.
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.
Case Law Reference
(1983) 2 SCC 132
relied on
Para 12
[1984] SCR 687
relied on
Para 12
[2003] 2 SCR 203
relied on
Para 13
[2010] 13 SCR 658
referred to
Para 16
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 249 of
2010.
From the Judgment and Order dated 17.03.2009 of the High Court
of Karnataka at Bangalore in Regular Second Appeal No.160 of 1995.
Naresh Kaushik, Mrs. Lalita Kaushik, Advs. for the Appellants.
Girish Ananthamurthy, Mrs. Vaijayanthi Girish, Advs. for the
Respondents.
The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. This appeal challenges the judgment and order dated 17th March
2009, passed by the High Court of Karnataka at Bangalore in Regular
Second Appeal No. 160 of 1995, thereby allowing the appeal filed by the
respondents herein.
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2. The facts in brief giving rise to filing of the present appeal are
as under:
A suit for partition being O.S. No. 388/77 came to be filed by
plaintiff Nos. 1 to 8, who are respondent Nos. 1 to 8 herein before the
Prl. Munshiff at Kolar (hereinafter referred to as the “trial court”), for
partition and separate possession of the suit properties. Vide judgment
and decree dated 11th September 1987, the said suit came to be decreed,
in part, declaring that plaintiff No. 2 was entitled to 7/24th share and
plaintiff No.3 was entitled to 1/8th share in the suit schedule properties.
It was further held that the plaintiffs were not entitled to any share in
suit Item Nos. 7 to 9 and 22. Vide the said judgment and decree, the
appellant herein-defendant No.1 was directed to render accounts in
respect of the receipt and expenditure of the mon

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