BASAYYA I. MATHAD versus RUDRAYYA S. MATHAD AND ORS.

Citation: [2008] 1 S.C.R. 1155 · Decided: 24-01-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Allowed
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Judgment (excerpt)

A 
B 
[2008] 1S.C.R.1155 
BASAYYA I. MATHAD 
V. 
RUDRAYYA S. MATHAD AND ORS. 
(Civil Appeal No. 1349 of 2001) 
JANUARY 24, 2008 
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] 
Code of Civil Procedure, 1908 : 
s.100, O.XLI r.27 - Suit for partition - Dismissed by trial 
C court and first appellate court:.._ On second appeal under s. 100, 
High Court directed the party to produce a document of 'grant' 
- After perusing the same, High Court held that finding of 
courts below were contrary to the 'grant' - Allowed the appeal 
and remanded case to first appellate court with direction to 
D decide the same in the light of finding and conclusion arrived 
at by it- Propriety of - Held: Not proper -Allowing the second 
appeal without framing substantial question of law is contrary 
to mandate of s.100 - High Court also committed error in 
interfering on question of fact which was not permissible under 
E s.100 - Also parties to the lis are not entitled to produce 
additional evidence as of course or routine but must satisfy 
the conditions stated in sub-clauses (a) and (aa) Rule 27 to 
Order XL/ - The order shows that High Court verified the 
document produced on his direction without complying 
F mandate as provided under Rule 27 of Order XL/ - Hence, 
finding of High Court based on a document produced at the 
time of argument de hors to Rule 27 and is not sustainable -
In such circumstances, his ultimate conclusion treating the 
suit property as a family property partible among the members 
G of the family is a/so liable to be set aside - Karnataka Land 
Reforms Act, 1974 - s.44 - Practice and procedure. 
The appellant was in possession of the suit property 
as tenant. By virtue of s.44 of Karnataka Land Reforms 
Act, 197 4, all the lands held by or in possession of tenants 
H 
1155 
.. 
BASAYYA I. MATHAD v. RUDRAYYA S. MATHAD 
1156 
AND ORS. 
vested in the Government. Appellant filed application for A 
registration of the occupancy rights in respect of the suit 
lands. The land tribunal and the appellate authority 
allowed the application holding that the appellant alone 
was cultivating the suit lands and other brothers had never 
cultivated the same. Thereafter, the brother of appellant B 
filed a suit for partition and separate possession of his 
share in the suit lands. The trial court dismissed the suit, 
which was affirmed by the first appellate court. 
On second appeal, being R.S.A. 105 of 1997, High 
Court, directed the production of an "order of the grant" C 
passed by the authority. On going through the same, High 
Court arrived at a conclusion that the findings of the courts 
below were contrary to the 'grant'. On 10.12.1997 High 
Court allowed the second appeal and remanded the matter 
to the first appellate court to decide the same in the light D · 
of the finding and conclusion arrived at by it. The first 
appellate court relying upon the opinion of High Court 
held that the suit land was granted for the benefit of entire 
family and the respondent was entitled to claim his share. 
Aggrieved appellant filed appeal RSA No.131 of 1999 E 
before the High Court. The High Court, basing reliance 
on opinion in the earlier second appeal, dismissed the 
second appeal in limine. Hence the present appeal. 
Allowing the appeal, the Court 
F 
HELD: 1. When the SLP came up for hearing, the 
respondents were put on notice to the effect that while 
hearing the SLP, the correctness of the earlier finding in 
the judgment of the High Court dated 10.12.1997 in R.S.A. 
No. 105of1997 would be gone into by this Court. In view G 
of the same, though the decision in R.5.A. No. 105 of 1997 
has not been challenged in this Court, this Court is 
considering the same. [Para 4] [1161-D, E] 
2.1. It is not in dispute that the parties in the earlier H 
1157 
SUPREME COURT REPORTS 
[2008] 1 S.C.R. 
A proceeding, namely, R.S.A. No. 105 of 1997 and in the 
impugned proceeding, R.S.A. No. 131 of 1999 are one and 
the same. The very same High Court Judge had passed 
both the orders. A perusal of the same shows that the 
Judge called the respondent for production of the "order 
B of grant" passed by the authority and after perusing the 
same arrived at a finding that the suit property should be 
treated as a family property and was partible among the 
members of the family. By arriving at such a conclusion, 
he set aside the orders of both the courts below. [Para 8) 
C [1163-C, D, E, F] 
2.2 It is not in dispute that the High Court Judge heard 
a
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