Partition Suit- Plaintiff Not Disentitled to Seek Relief in Second Appeal Merely Because He Did Not File First Appeal against Denial of His Claims by Trial Court

Case: Azgar Barid (D) By LRs vs Mazambi @ Pyaremabi

Coram: Justice L. Nageswara Rao and B R Gavai

Case No.: CA 249 OF 2010

Court Observation: “In that view of the matter, we find that the contention raised on behalf of the appellant 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. As held by this Court in the case of Chandramohan Ramchandra Patil (supra), the 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.”

“In the present case, the First Appellate Court had reversed the findings recorded by the trial court which were based upon correct appreciation of evidence. The High Court has given sound and cogent reasons as to why an interference with the findings of the First Appellate Court was required. We also find that the First Appellate Court has failed to take into consideration the voluminous oral as well as documentary evidence, on the basis of which the trial court had recorded its findings. The findings as recorded by the First Appellate Court are based on conjectures and surmises. As such, we are of the considered view that the perverse approach of the First Appellate Court in arriving at the findings would give rise to a substantial question 20 of law, thereby justifying the High Court to interfere with the same.”, the bench said while dismissing the appeal.

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Keywords

Partition Suit, Trial Coury