TOIRABI Vs. GOUSE IMAM PATIL

JUDGEMENT

(1.) THIS second appeal arises out of a partition suit. This Court, while admitting the appeal has stated that the substantial question of law, which is involved in this appeal is: whether the First Appellate Court was justified in holding that the plaintiff has no right to claim share in respect of suit schedule lands?

(2.) THEREFORE, untrammelled by the controversy which hinged in the Trial Court and the First Appellate Court, I confine my consideration only to this question.

(3.) THE plaintiff (appellant herein) filed the suit for partition and separate possession, claiming 204/57th share in the suit properties comprising of agricultural lands, house and open site. The Trial Court decreed the suit of the plaintiff on 30-11-1957, holding that the plaintiff is entitled to 27/48th share in the suit schedule properties. Aggrieved by that judgment and decree of the Trial Court, the defendant 7 filed an appeal before the First appellate Court. The First Appellate Court by its judgment and decree dated 5-12-1963, dismissed the suit of the plaintiff in respect of agricultural lands, and decreed the suit in respect of the house and open site. Thus, it modified the judgment and decree of the Trial Court to that extent. As against that, the plaintiff preferred a second appeal before this Court. This Court by a judgment and decree dated 26-8-1971, set aside the judgment and decree of the First Appellate Court and remanded the matter to the First Appellate Court for fresh disposal of the appeal in accordance with law and had also directed it to consider LA. No. I filed by the defendant 7 seeking permission of the Court to raise a preliminary point regarding the maintainability of the appeal and the suit, in view of the regrant of the lands in favour of defendant 1 under the provisions of the karnataka Village Officers Abolition Act, 1961. After the remand, the First Appellate Court reconsidered the matter and the appeal of the defendant 7 was again partly allowed and partly dismissed. While it decreed the suit of the plaintiff in respect of the house and open site, it dismissed the suit of the plaintiff in respect of the agricultural lands. It also dismissed the I. A. No. I of the defendant 7 filed before this Court and consequently dismissed the I. A. No. 7 of the defendant 7 filed before the First Appellate Court seeking leave to file additional written statement to raise certain legal points regarding the regrant of lands. Hence, this second appeal.