JUDGMENT/ORDER 1. The captioned appeal is filed by defendant No.4 feeling aggrieved by the concurrent findings of the Courts below, wherein the plaintiffs suit seeking relief of partition - 4 - RSA No. 878 of 2012 and separate possession is decreed granting 1/3rd share each to plaintiff Nos.1 and 2. 2. For the sake of brevity, the parties are referred as they are ranked before the Trial Court. 3. The genealogical tree of the family is as under; 4. One Kurigala Muniyappa is shown to be propositus, who had five sons. In the family tree, it is also indicated that two sons of Kurigala Muniyappa died issue less, therefore, only three branches of propositus - Kurigala Muniyappa are litigating the present suit. The branch of Nanjundappa and Kyathappa have filed the present suit for partition and separate possession contending that the suit schedule properties are joint family ancestral properties. 5. Defendant Nos.1 to 3, who represent the branch of Marappa, have not chosen to contest the suit, while defendant Nos.4 to 6, who are the purchasers, contested the proceedings and have also led in oral and documentary evidence. The Trial Court while answering issue Nos.1 and 2 in the affirmative has come to the conclusion that contesting defendants have not filed any written statement. Therefore, in absence of contest, the Trial Court proceeded to answer issue Nos.1 and 2 in the Affirmative and suit is decreed granting 1/3rd share each to plaintiff Nos.1 and 2 respectively. 6. Defendant Nos.4 to 6, who are the purchasers, feeling aggrieved by the preliminary decree granting 1/3rd share each to the plaintiffs, preferred an appeal in R.A.No.71/2007. The Appellate Court has also come to the conclusion that there is no contest by defendant No.4. In paragraph No.11, the Appellate Court has also made an observation that defendant No.4 has failed to file written statement. Therefore, the Appellate Court on an assumption that there is no contest by defendant No.4 by filing written statement has proceeded to concur with the conclusions and reasons assigned by the Trial Court. Consequently, the appeal is dismissed. 7. This Court by order dtd. 1/2/2023 has admitted this appeal on the following substantial questions of law. 1. Whether both Courts erred in recording a finding that there is no contest by defendant No.4 as he has failed to file written statement is perverse and contrary to the memo dtd. Consequently, the appeal is dismissed. 7. This Court by order dtd. 1/2/2023 has admitted this appeal on the following substantial questions of law. 1. Whether both Courts erred in recording a finding that there is no contest by defendant No.4 as he has failed to file written statement is perverse and contrary to the memo dtd. 13/9/2000, where he was permitted to adopt the written statement filed in O.S.No.56/1989? 2. Whether both Courts erred in not framing an issue in the light of the defence set up in para No.7 of the written statement filed by defendant No.4, wherein defendant No.4 - purchaser has specifically claimed that these two properties were self acquired properties of the father of defendant Nos.1 to 3 namely Marappa? 8. Heard learned counsel appearing for defendant No.4 and learned counsel appearing for the plaintiffs. 9. With the consent of both counsel, this matter is taken up for final hearing as the suit of the year 1996 and the parties are litigating in a partition suit for almost 27 years. 10. On examination of the issues formulated by the Trial Court, this Court would find that Trial Court has not properly formulated issues in the present case on hand. This Court is also of the view that findings recorded by both the Courts that defendant No.4 has not filed written statement runs contrary to the memo dtd. 13/9/2000. It appears that defendant No.4 filed a memo dtd. 13/9/2000 seeking leave of the Court to adopt the written statement filed in O.S.No.56/1989, which was admittedly filed by the plaintiffs seeking relief of partition and separate possession. In the said proceedings, the Court returned plaint to present the same before the appropriate forum as the Court was of the view that present suit would lie before the Senior Civil Judge Court and not before the Junior Civil Judge Court. It is in this background, defendant No.4 sought leave of the Court to adopt the written statement, which was already filed. The trial Court accepted the said memo and proceeded to frame an issue. The fact that Trial Court has formulated the issue No.3 casting burden on defendant Nos.4 to 6 pre-supposes that Trial Court has entertained written statement filed by defendant No.4 in earlier proceedings. The trial Court accepted the said memo and proceeded to frame an issue. The fact that Trial Court has formulated the issue No.3 casting burden on defendant Nos.4 to 6 pre-supposes that Trial Court has entertained written statement filed by defendant No.4 in earlier proceedings. If memo filed by defendant No.4 was entertained by trial Court and an issue was framed in the light of the defence set up by defendant No.4, then this Court is of the view that both Courts erred in not examining the stand taken by defendant No.4 in the written statement. It is also brought to the notice of this Court that even plaintiffs were permitted to adopt the evidence, which was already recorded in the earlier suit vide memo dtd. 1/8/2001. 11. If these significant details are looked into, then this Court is of the view that both Courts have fundamentally committed procedural error while deciding the lis between the parties. More particularly, the Trial Court has not properly formulated issues in the light of the stand taken by defendant No.4. Though written statement filed by defendant No.4 is not a part of record, but, however, it appears that Trial Court has taken cognizance of the averments made in the written statement filed by defendant No.4 and issues are framed. This Court, after going through written statement, has gone through defence set up by defendant No.4 in the written statement. On examining para No.7 of the written statement, this Court would find that Trial Court has not properly formulated issues. 12. In a partition suit, where there are alienations, often Trial Court frames an issue; as to whether Transferees - Purchasers are bonafide purchasers? This Court is of the view that in a partition suit, there is no question of there being a bonafide purchaser of an ancestral property. If there is a purchase of undivided interest depending upon the facts and circumstances of the case either in an issue as to whether alienation was for legal necessity or the properties under whom transferees are asserting right are self acquired properties of the vendors, are possibly the issues that would arise for consideration. In the light of what is stated in para No.7 of the written statement, the Trial Court could not have framed issue No.3 in the present case on hand. The question of bonafide purchaser would not arise in a partition suit. In the light of what is stated in para No.7 of the written statement, the Trial Court could not have framed issue No.3 in the present case on hand. The question of bonafide purchaser would not arise in a partition suit. The defendants are asserting that their vendor's father - Marappa was the absolute owner of the suit schedule properties and these properties were not purchased from the joint family corpus. Para No.7 of the written statement refers to the particulars in regard to the manner in which Marappa acquired properties under the registered sale deed. Therefore, an issue would arise for consideration and the burden has to be casted on defendant No.4 and other defendants to demonstrate and prove that these properties were self acquired properties of Marappa and not joint family ancestral properties. 13. It would be useful for this Court to cull out para No.7 of the written statement, which reads as under; "That the schedule properties are the self acquired properties of Marappa - the father of defendant Nos.1 to 3. The said Marappa died on 4/6/1959. The brother of Marappa was never in joint family as alleged by the plaintiffs. The schedule properties are the self acquired properties of the said Marappa, who was residing separately. The Muniyappa - the grand father of defendant Nos.1 to 3 had no properties of any nature, the 1st plaintiff - Akkalamma got married to Kalappa of Baktharahalli about 30 years ago, residing in a rented house at Sidlaghatta. The 2nd plaintiff - Chikka Nagamma is not the wife of said Kyathappa. The said Kyathappa died as Bachelor, who was a vagabond. After the death of Marappa, the defendant Nos.1 to 3 becomes the sole survivors and only legal representative. The defendants 2 and 3 have sold 1st item of Sy. No.29/1 under the registered sale deed dtd. 21/4/1987 and item No.4 house premises under registered sale deed dtd. 20/7/1984 and 8/8/1984 respectively and also executed the rectification deed for having rectified the assessment No. in the said deed on 8/8/1984 in favour of Ramachandrappa s/o Venkatappa. The said defendant has constructed the residential house in this item and residing in it and also these defendants have sold item No.5 to said Ramachandrappa on 18/3/1986 in which he is rearing silk worms and in continuous possession thereof. The said defendant has constructed the residential house in this item and residing in it and also these defendants have sold item No.5 to said Ramachandrappa on 18/3/1986 in which he is rearing silk worms and in continuous possession thereof. Further the said Ramachandrappa has inclined to file O.S.No.49/1987 before the learned Munsiff, Sidlaghatta against the II plaintiff refer to the 5 th item and got the judgment and decree against her dtd. 7/9/1987. On the dates of above transaction, the said defendants have handed over the possession of the above said properties to the said Ramachandrappa, who is the bonafide purchaser, which is fully aware by the plaintiffs. After the purchaser, the said Ramachandrappa has raised Hurali crop in Sy. No.29/1 and improved all his properties purchased with hard labour and spending huge money. This defendant after the purchase has dismantled the old house in item No.4 and after obtaining the licence and approved plan dtd. 21/5/1985 and thereby constructed the new building and residing in it with his family. And further he has obtained the building licence from T.M.C dtd. 8/10/1987 for the construction of new house in item No.5. This is fully aware by the plaintiffs and defendants. The katha and R.T.C extracts of the above said properties have been changed to the name of Ramachandrappa, who is the absolute owner in possession of the schedule properties and paying taxes to T.M.C, Sidlaghatta and the Government." 14. Therefore, if defence set up at para No.7 of the written statement is looked into, then proper issue that would arise for consideration is; Whether defendant Nos.4 to 6 prove that suit schedule properties are self acquired properties of Marappa and therefore, they are not available for partition? 15. In the light of the discussion made supra, the judgment and decree rendered by the Appellate Court is not sustainable. If the findings recorded by the First Appellate Court at these relevant paragraphs are examined, then This Court is of the view that the power which is vested with the Appellate Court in independently assessing the entire material on record is not forthcoming from the judgment under challenge. Sec. 107(2) of CPC does vest the Appellate Court with some powers that are conferred on Court on original jurisdiction. Sec. 107(2) of CPC does vest the Appellate Court with some powers that are conferred on Court on original jurisdiction. It is a trite law that it is a bounden duty of the Appellate Court to see whether the evidence taken as a whole can reasonably justify the conclusion which the Trial Court arrived at or whether there is an element of improbability arising through a number of circumstances which in the opinion of the Court outweighs such finding. Though the First Appellate Court has concurred with the findings of the Trial Court, it is still incumbent on the part of the First Appellate Court to formulate proper issues that would arise for consideration in the light of the grounds urged in regular appeal. The legislature has entrusted a very important duty to the First Appellate Court and it is for Appellate Court to decide finally all questions on facts on which the disposal of the suit might depend. The First Appellate Court has to make an honest endeavor to make a proper apprising of the merits of the case put up by the parties. But on plain reading of above culled out paragraphs of the judgment of the First Appellate Court, it can be easily inferred that the First Appellate Court has not taken trouble to give a re-look into the matter. The First appellate Court being a final fact finding authority has to exhaustively deal with every contention, which would be vital and would have a bearing on the conclusions that are arrived at by the Trial Court. There must be sufficient discussion to show that it has applied its own mind to the evidence. The First Appellate Court has to pronounce the judgment only after applying judicial mind to the appreciation of evidence and thereafter has to manifestly convey the judicial thinking by which it either confirms or reverse with the judgment of the Trial Court. It is a trite law that he appeal is a continuation of suit and therefore, the First Appellate Court is under a bounden duty to revisit over the disputed questions of fact and thereafter come to a conclusion. It is a trite law that he appeal is a continuation of suit and therefore, the First Appellate Court is under a bounden duty to revisit over the disputed questions of fact and thereafter come to a conclusion. In the process if the First Appellate Court comes to a conclusion that it cannot accept the reasons assigned by the Trial Court, then it can divert with the reasons which are recorded by the Trial Court and while reversing the decree of the Trial Court, it has to attend all relevant questions, which would arise for consideration in the context of issues framed therein and ocular and documentary evidence which would be let in by the parties. 16. It would be relevant for this Court to refer to the principles laid down by the Kerala High Court in the case of KURIAN CHACKO V. VARKEY OUSEPH, AIR 1969 Kerala 316 while examining the power of the Appellate Court hearing an appeal under Sec. 96 has held as under: "Civil P.C. (5 of 1908) S.96, S.107 - Duty of appellate Court to consider evidence independently. An Appellate Court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him. No supplementing of appreciation is contemplated at the appellate stage. But, an independent appraisal of the evidence is the duty of the Court at that level. Failure to do that is an abdication of appellate power. It is the appellate Court's function not to find out whether there is perversity in the trial Court's judgment but whether it is wrong. There is very wide difference between a wrong conclusion and a perverse conclusion. A restricted revisional jurisdiction may be invoked under certain statutes only where there is perversity in the findings but the wider appellate jurisdiction conferred under Sec. 96 of the Civil P. C., demands a little more effort on the part of the appellate Court in going into the evidence to come to its own conclusion and reversing the trial Court's decision if it is found to be wrong" (Emphasis supplied) 17. The Full Bench of the Hon'ble Apex Court in the case of SANTOSH HAZARI V. PURUSHOTTAM TIWARI, (2001)3 Supreme Court Cases 179 has held that the judgment of the First Appellate Court under Sec. 96 of CPC read with Order XLI Rule 1 and 2 of CPC must display conscious application of mind and record findings supported by reasons on all issues and contentions. 18. The Full Bench of the Hon'ble Apex Court in the case of MADHUKAR AND OTHERS V. SANGRAM AND OTHERS, (2001)4 Supreme Court Cases 756 reiterating the principles laid down in the case of Santosh Hazari (supra) has further held that if Court fails to fulfill its obligations, the parties would not get the true benefit of a first appeal, which is a valuable right on the basis of which parties have the right to be heard on questions of law as well as of fact. 19. Though the matter deserves to be remitted back to the Trial Court, however, this Court is not inclined to remit the matter to the Trial Court, but to the Appellate Court. The Appellate Court being a final fact finding Authority can always formulate additional issue and is also empowered under Order 41 read with Sec. 96 of CPC to relegate the parties to lead further evidence. Since both Courts have proceeded on an assumption that there is no written statement by defendant No.4 and also on account of improper framing of issues, I am of the view that the matter needs to be remitted back to the Appellate Court. 20. If Trial Court had entertained the memo filed by defendant No.4 as stated supra and if issues are framed based on cognizance taken in the written statement filed in earlier litigation, both Courts erred in proceeding on an assumption that there is no written statement by defendant No.4. Therefore, both Courts have committed a procedural error. Both Courts were influenced by the fact that there is no written statement and it appears in this context the issue No.1 was answered in the Affirmative. 21. Now, whether stand taken in para No.7 of the written statement coupled with the rebuttal oral evidence carries any evidentiary value is to be tested by the Court. Both Courts were influenced by the fact that there is no written statement and it appears in this context the issue No.1 was answered in the Affirmative. 21. Now, whether stand taken in para No.7 of the written statement coupled with the rebuttal oral evidence carries any evidentiary value is to be tested by the Court. The fact that no issue is farmed as to whether these properties are self acquired of Marappa, this Court of the view that the same has caused prejudice to the defence set up by defendant No.4. In that view of the matter, the substantial questions of law are answered in the Affirmative. For foregoing reasons, the second appeal is allowed and the matter is remitted back to the Appellate Court. The Appellate Court shall formulate an additional issue as indicated supra in the judgment. It is open for the parties to lead further evidence, if they chooses to do so. The Appellate Court shall conclude the Trial in the event the parties chooses to lead further evidence and thereafter, decide the matter on merits within a period of eight months from the date of receipt of the records and order copy passed by this Court. Since parties are represented by their counsel, they shall appear before the Appellate Court on 6/3/2023 without expecting any further notice from the Appellate Court. Registry to forthwith remit records to the Appellate Court.