SOMAKKA (DEAD) BY LRS versus K.P. BASAVARAJ (DEAD) BY LRS

Citation: [2022] 17 S.C.R. 668 · Decided: 13-06-2022 · Supreme Court of India · Bench: S. ABDUL NAZEER · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 17 S.C.R.
   [2022] 17 S.C.R. 668
668
SOMAKKA (DEAD) BY LRS.
v.
K.P. BASAVARAJ (DEAD) BY LRS.
(Civil Appeal No (S). 1117 of 2009)
JUNE 13, 2022
[S. ABDUL NAZEER AND VIKRAM NATH, JJ.]
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.
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669
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.
Case Law Reference
[2001] 1 SCR 948
relied on
Para 29.1
[2014] 10 SCR 1050
relied on
Para 29.3
CIVIL APPELLATE JURISDICTION : Civil Appeal No.1117 of
2009.
From the Judgment and Order dated 19.08.2006 of the High Court
of Karnataka at Bangalore in R.F.A. No.214 of 2004.
Naveen R. Nath, Ms. Saumya Tandon, Ms. Hetu Arora Sethi,
Advs. for the Appellants.
G. V. Chandrashekar, Sr. Adv., N. K. Verma, Ms. Apeksha D.,
Ms. Anjana Chandrashekar, Advs. for the Respondents.
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 of 1991 instituted
in the Court of the City Civil Judge, Bangalore, wherein the sole defendant
is the respondent herein (brother of the appellant). Primarily, two reliefs
were claimed in the said suit; firstly a partition and separate possession
of ¼ (one fourth) share in properties described at item nos. 1 and 2 and
½(one half) share in the property described in item no. 3 of Schedule ‘A’
SOMAKKA (DEAD) BY LRS. v. K.P. BASAVARAJ (DEAD) BY
LRS.
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SUPREME COURT REPORTS
[2022] 17 S.C.R.
to the plaint; the second relief prayed was for a decree of specific
performance of the agreement and sale dated 25.05.1981 with respect
to the property described in Schedule ‘B’ to the plaint.
3. The claim set up by the appellant was that properties described
at item nos. 1 and 2 in Schedule ‘A’ were ancestral properties and,
therefore, upon the death of her father in 1974, she would be entitled to
¼ share and further that the property described as item no.3 of Schedule
‘A’ was exclusively occup

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