Karnataka High Court
Iravva vs Karanappa Gurappa Nandigeri @ Zalaki on 4 October, 2012
Author: N.K.Patil
Bench: N.K. Patil
1
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 4TH DAY OF OCTOBER, 2012
:BEFORE :
THE HON'BLE MR. JUSTICE N.K. PATIL
R.S.A.NO. 742 OF 2004 (Par)
Between:
1. Smt. Iravva
W/O Shanmukhappa Zalaki
75 years,
R/O Akki Alur, Taluk Hangal,
Dist: Haveri-581102.
2. Malleshappa Shanmukhappa Zalaki
Since deceased by his L.Rs.
2a. Neelavva
W/O Malleshappa Zalaki,
61 years,
R/O Andalagi, Tq. Shiggaon,
Dist: Haveri-581203.
2b. Akkamahadevi Alias Lalitha,
W/O Shambulingappa Javali,
37 years, R/O Andalgi, Tq. Shiggaon,
Dist: Haveri-581203.
2c. Vijaya
W/O Iranna Misrikoti,
Major, R/O Shiggaon,
Dist: Haveri-581205.
2d. Nanda
W/O Iranna Puttanashetty
2
Alias Gurammanavar,
33 years, R/O Veerapur Oni,
Hubli-580020.
2e. Jagadeesh Malleshappa Zalaki
31 years,
R/O Hukkerimath High School,
Dist: Haveri-581110.
3. Gangappa Shanmukhappa Zalaki
Since deceased by his L.R.s
3a. Smt. Shivagangavva Gangappa Zalaki,
58 years, R/o Akki Alur,
Tq. Hangal, Dist: Haveri-581102.
3b. Basavaraj Gangappa Zalaki,
37 years, R/o Akki Alur,
Tq. Hangal, Dist: Haveri-581102.
3c. Smt. Saroja Alias Narmada
W/o Chennabasappa Margur,
35 years, R/o Koppal-583231.
3d. Geeta D/o Gangappa Zalaki,
24 years, R/o Akki Alur,
Tq. Hangal, Dist: Haveri-581102.
3e. Prabhuling Gangappa Zalaki,
22 years, R/o Akki Alur,
Tq. Hangal, Dist: Haveri-581102.
[ 3(a) to 3(e) amended vide court order
dated 27.10.2006]
4. Babu Shanmukhappa Zalaki
61 years, R/O Akki Alur, Tq. Hangal,
Dist: Haveri-581102.
3
5. Channaveerappa Shanmukhappa Zalaki,
43 years, R/O Akki Alur,
Tq. Hangal, Dist: Haveri-581102.
... Appellants
(By Sri. M G Malavade, Advocate.)
And
1. Karanappa Gurappa Zalaki
71 years, R/O Akki Alur, Tq. Hangal,
Dist: Haveri-581102.
2. Chandrashekharappa Bhammukhappa Zalaki,
Since deceased by his L.Rs.
2a. Smt. Champa
W/o Chandrashekhar Zalaki,
Aged about 50 years,
R/o C/o Smt. Kavita
W/o Ashok Hosamani,
Chetana College Road,
Akshay Colony, Main Road (Sali Badavane)
Sirur Park, Near 2nd Stage,
Hubli-580021.
2b. Smt. Kavita, W/o Ashok Hosamani,
Chetana College Road,
Akshay Colony, Main Road (Sali Badavane)
Sirur Park, Near 2nd Stage,
Hubli-580021.
2c. Smt. Mamatha, W/o Vijaya Hottiholi,
Aged about 36 years,
R/o C/o Hattiholi, Retd. Dy.S.P.
Opposite to Lions School, Vijayanagar,
Hubli-580032.
2d. Smt. Roopa Basavaraj Devagiri,
34 years, R/o Shrinagar,
4
2nd Cross, Dharwad-580001.
2e. Vijaya S/o Chandrashekhar Zalaki,
Aged about 31 years,
R/o 101, Vittal Nagar,
Near National Convent School,
Next to ISRO Badavane,
Bangalore-560078.
[ 2(a) to 2(e) amended vide court order
dated 16.09.2010]
3. Smt. Ratnavva
W/O Topanna Puttanashetty,
59 years, R/O Sankeshwar, Hukkeri Taluka,
Belgaum Dist.-591313.
4. Sharavva Chandrashekharappa Mudholkar
Aged about 57 years, R/O Annapoorna Nilaya,
Prashant Colony, Vidhyanagar,
Hubli-580021.
5. Bebakka Alias Savita
W/O Basavaraj Attikatti,
41 years, R/O Hansabhavi, Hosapet Oni,
Hirekerur Taluka, Haveri Dist. 582109.
6. Bangerappa Baasvannappa Zalaki,
60 years, R/O Akki Alur, Tal: Hangal,
Dist: Haveri-581102.
... Respondents
(By Sri. V P Kulkarni, Advocate for R1,
R2(a-e)- served, R3-R6 - served.)
This RSA is filed U/S. 100 of CPC against the
Judgement & Decree dated 19.6.2004 passed in
R.A.No.11/03 on the file of the District Judge, Haveri,
allowing the appeal and setting aside the Judgement and
5
Decree dated 17.2.2003 passed in OS No.111/2002 on the
file of the Civil Judge (Sr. Dn.), Hangal.
This RSA coming on for Final Hearing this day, the
Court delivered the following:
:JUDGMENT:
This appeal is by the defendants against the impugned judgment and decree dated 19.6.2004 passed in R.A.No.11/2003 by the District Judge, Haveri wherein the judgment and decree dated 17.2.2003 passed in OS No.111/2002 by the Civil Judge (Sr.Dn) Hanagal has been set aside, for considering the following substantial questions of law:
a) Whether the finding of the lower court that suit schedule properties are joint family properties and grant of occupancy rights by Land Tribunal over suit lands to Shanmukhappa, enure to the benefit of plaintiff and defendant No.10 is sustainable under law, when admittedly from 1962, the family of plaintiff, Shanmukhappa and defendant No.10 are separated and partition decree has been passed in L.C.243/62 in respect of family properties and they are enjoying the lands fallen to their respective share and as on 1.03.1974 or prior to it, plaintiff and defendant No.10 were not members of joint family and they were not cultivating the suit lands.6
b) Whether the lower appellate court justified in decreeing the suit for partition and giving of 1/3rd share each to plaintiff and giving of 1/3rd share each to plaintiff and defendant No.10, when admittedly since 1962 they never cultivated the suit lands and Shanmukhappa alone has been cultivating the lands as tenant till his death.
c) Whether the lower appellate court was right in holding that plaintiff and defendant No.10 were joint family members as on 1.3.1974, so that the grant of occupancy rights in favour of Shanmukhappa will enure to their benefit also.
d) Whether the finding of the lower appellate court is correct that in 1962 at the time of filing L.C.243/62 the rights of plaintiff was not crystalized and he could not have included the suit lands as one of the items of properties in LC No.243/62 is correct when the tenancy rights are subjected to partition between the family members.
e) Whether the finding of the lower appellate court that the suit is not barred by limitation is correct. According to PW1 they are living separately since 1962 and enjoying their share and their rights over suit lands have been crystalized on 20.5.1975 by virtue of grant of occupancy rights over suit lands by Land Tribunal and cause of action arose on 20.05.1975 and the suit O.S.111/2002 is filed on 22.09.1990.7
f) Whether the lower appellate court is justified in holding that the suit lands were not free hold rights and that the same were lease hold rights, and as such deceased Shanmukhappa cannot assign his rights in respect of suit lands to his heirs.
2. For the sake of convenience, the parties herein are referred to as per their rankings in the Trial Court.
3. It is the case of the plaintiff that one Gureppa was the propositus of the family. He died leaving behind him three sons by name Sri. Shanmukhappa, Sri. Basavanneppa and Sri. Karnappa. Sri. Shanmukhappa died in 1987 leaving behind him defendants -1 to 9 as his legal heirs. Sri. Basavanneppa died leaving behind him defendant No.10 as his legal heir. Sri. Karnappa who is son of Sri. Gureppa is the plaintiff in original suit.
4. Deceased Sri. Gureppa had two wives by name Smt. Shivakka and Smt. Puttavva and Sri. Shanmukhappa was the son of first wife of the deceased Sri. Gureppa, namely Smt. Shivakka. After the death of Smt. Shivakka, Sri. Gureppa took second marriage and married Smt. Puttavva. The plaintiff Sri. Karneppa is the son of Sri. Gureppa 8 through second wife Smt. Puttavva. In fact, Smt. Puttavva gave birth to two sons, namely Sri. Basavanneppa and Sri. Karneppa, namely, plaintiff and Sri. Basavanneppa died during 1941-42 leaving behind him his son Sri. Bangareppa. Smt. Virupaxavva was carrying when Sri. Basavanneppa passed away. Smt. Virupaxavva gave birth to Sri. Bangareppa, who is defendant No.10.
5. It is the further case of plaintiff that suit schedule properties which are lands bearing RS No.212/3 measuring 2 acres 19 guntas and 212/5 measuring 3 acres and 23 guntas of Havanagi, Hanagal Taluk and District Haveri are raitwari lands and the same were managed by the deceased Sri. Shanmukhappa being the eldest member in Hindu Undivided Joint Family and as Manager of the said Family. Sri. Shanmukhappa took the above said two lands on lease and filed application in Form No.VII before the Land Tribunal, Hanagal and Land Tribunal, Hanagal held Sri. Shanmukhappa as occupant and passed an order on 20.5.1976 holding that the said Shanmukhappa as tenant of the above said lands and registered the occupancy rights in 9 his favour and his name came to be entered as cultivator and kabjedar of the above said two lands.
6. It is the further case of the plaintiff that, excluding the suit property involved in OS No.111/2002 (Old No.245/1990) he filed a suit in LC No.243/1962 before Munsiff, Haveri for partition and separate possession of joint family properties. The said suit was filed by the plaintiff against deceased Sri. Shanmukhappa since difference arose between them. In the said case, panchas were appointed by Munsiff, Haveri, for settlement of the dispute in LC No.243/1962 and panch award was passed. Since suit properties involved in OS No.111/2002 were free hold lands and since the said lands were tenancy lands, suit in LC No.243/1962 was filed excluding lands bearing RS No.212/3 and 212/5 of Havanagi, Hanagal Taluk. Aggrieved by panch award passed in LC No.243/1962, deceased Sri. Shanmukhappa preferred appeals and the said appeals were finally disposed off in 1979 and panch award passed by panchas came to be confirmed.
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7. It is the further contended by the plaintiff at paragraph No.9 of the plaint that he could not bring within the frame of the suit in LC No.243/1962 lands bearing RS No.212/3 and 212/5 for partition, since the said lands were raitwari (tenanted) lands and that himself or Sri. Shanmukhappa had no ownership rights with regard to said lands. Sri. Shanmukhappa passed away during 1987 at Akki Alur, Hanagal Taluk. Shri. Shanmukhappa, during his life time, without the knowledge of plaintiff and defendant No.10 took steps in getting entered the names of defendant Nos. 2 and 6 as owners of lands bearing RS No.212/3 and 212/5 and he came to know about entry of names of defendant Nos. 2 and 6 recently. It is the case of the plaintiff that he has 1/3rd share in suit property and `15,000/- is the income which was derived from suit properties in question and he is entitled for mesne profits for a period of three years, immediately prior to filing of the suit which amounts to `45,000/- and thus, he prayed to grant 1/3rd share in suit properties and an order for handing over of possession of his 11 share and to pass orders for grant of mesne profits at `15,000/- per year with costs.
8. Upon service of notice, defendant No.4 appeared through his counsel and filed written statement under order 8 Rule 1 CPC on 23.9.1991 contending that suit filed by the plaintiff is barred by law of limitation. It is the case of the defendant No.4 that, suit filed by the plaintiff is hit by order 2 Rule 2 of CPC and is liable to be dismissed summarily. He has admitted the contents of paras 1 to 4 of the plaint. Genealogy of the family stated by plaintiff at paragraph No.3 of the plaint is admitted by defendant No.4. He has contended that his father Sri. Shanmukhappa was cultivating suit lands in question in his individual name and as a tenant and Sri. Shanmukhappa obtained occupancy rights with regard to suit property and plaintiff has no right or interest in the same. He has taken up a contention that, if really the suit properties were properties of joint family, the plaintiff ought to have included the same within the suit frame of LC No.243/1962 and the plaintiff, at this stage cannot seek a share in suit properties. He denied the 12 averments made in paras-5 to 10. It is the contention of defendant No.4 at para-9 of the written statement that, suit filed in LC No.243/1962 came to be decided finally in 1979 and if at all the plaintiff has any right in suit schedule properties, he could have included the same in that case prior to 1979 and suit of plaintiff is, therefore, bad in law. It is the further case of the defendant No.4 that Sri. Shanmukhappa in 1962, took possession of suit properties allotted towards his share and separated from joint family and Shri. Shanmukhappa began to cultivate the properties which were allotted to him in the partition and that he began to cultivate the suit schedule properties as a tenant, in his individual name and applied for grant of occupancy rights in his individual capacity and accordingly, occupancy rights were conferred on him in his individual name and plaintiff has no share in suit properties, since there was partition in 1962 and thus has prayed to dismiss suit of the plaintiff with cost.
9. Defendant No.10 filed consenting written statement prayed the court to decree suit of the plaintiff and to award 13 him 1/3rd share in suit schedule properties. Counsel appearing for defendant No.3 filed a memo on 22.10.1991 adopting written statement filed by defendant No.4 as his written statement. Counsel appearing for defendant Nos. 1 to 3, 5 to 9 filed a memo praying the court to treat the written statement filed by defendant No.4 as their written statements.
10. On the basis of the pleadings of both the parties, the Trial Court has framed five issues on 1.8.1995 and also filed an additional issue No.6 on 12.6.1998 which reads thus:
1. ªÁ¢AiÀÄÄ, zÁªÁ ¸ÀéwÛ£À°è vÀ£ÀUÉ 1/3 CA±À »¸Éì EzÉ JAzÀÄ ªÀÄvÀÄÛ CzÀgÀ ¥ÀævÀåPÀë PÀ¨ÉÓ AiÉÆAzÀ®Ä ºÀPÀÄ̼ÀîªÀ£ÉAzÀÄ ¹zÀÞ¥Àr¸ÀĪÀ£ÉÃ?
2. ªÁ¢AiÀÄÄ vÀ£Àß »¸Éì ¨Á§vÀÄÛ ªÁ¶ðPÀ gÀÆ.1500-00 zÀªÀiÁåð£À GvÀà£ÀߪÀ£ÀÄß ¥ÀæwªÁ¢¬ÄAzÀ ºÉÆAzÀ®Ä ªÀÄvÀÄÛ zÁªÁ RZÀð£ÀÄß ¥ÀqÉAiÀÄ®Ä CºÀð JAzÀÄ ¹zÀÞ¥Àr¸ÀĪÀ£ÉÃ?
3. ¥ÀæwªÁ¢AiÀÄgÀÄ ªÁ¢UÉ zÁªÁ ¸ÀéwÛ£À°è ºÀPÀÄÌ E®è JAzÀÄ ¹zÀÞ¥Àr¸ÀĪÀgÉÃ?
4. ªÁ¢ zÁªÁ ¥ÀjºÁgÀ ºÉÆAzÀ®Ä CºÀð£ÉÃ?
5. CAwªÀÄ DzÉñÀ ªÀ rQæ K£ÀÄ?
ºÉZÀÄѪÀj «ªÁzÁA±À:
14
6. ¥ÀæwªÁ¢ £ÀA: 1 jAzÁ 9£ÉÃzÀªÀgÀÄ ªÁ¢AiÀÄ zÁªÉAiÀÄÄ ¸ÀªÀÄAiÀÄ «ÄÃjzÉÝAzÀÄ ¹zÀÝ¥Àr¸ÀĪÀgÉÃ?
11. In order to prove their case, plaintiff got examined himself as PW1 and got marked 7 documents as per Exs.P1 to P7. On the other hand, defendant No.10 was examined as DW1, defendant No.4 was examined as DW2 and they got marked 11 documents as per Exs.D1 to D11.
12. The Trial Court, after hearing both sides, has proceeded to hold that plaintiff does not have share in suit properties and dismissed the suit of the plaintiff with costs. Further, the Trial Court has observed that, it cannot decide as to whether tenancy with regard to suit properties are of the joint family or of any particular individual in view of nature of documents produced by the parties before the Court and also observed that, it is to be presumed that tenancy is in favour of Sri. Shanmukhappa which is now inherited by defendant Nos. 1 to 9 being legal heirs of deceased Shanmukhappa.
13. Being aggrieved by the said judgment and decree passed by the Trial Court, plaintiff has preferred an appeal 15 before the District Judge, Haveri ('First Appellate court' for short) in Regular Appeal No.11/2004.
14. The First Appellate Court, after hearing the parties, after going through the judgment and decree passed by the Trial Court and other materials available on file, has raised the following points for its consideration:
1. Whether plaintiff has 1/3rd share in suit schedule properties?
2. Whether suit of the plaintiff is bad under order 3 Rule 2 of CPC?
3. Whether suit of plaintiff is barred by law of limitation?
4. Whether plaintiff has the right claim partition in suit schedule properties of which occupancy rights were conferred by Land Tribunal, Hangal, in favour of deceased Sri. Shanmukhappa, as per Order in LRMSR No.132/1 of Land Tribunal, Hanagal dated 20.5.1976?
5. Whether any illegality is committed by the Court below in dismissing suit of plaintiff as per judgment and decree dated 17.2.2003?
6. What order?
15. First Appellate Court, after re-appreciation of the oral and documentary evidence and other materials available on file, has answered point Nos. 1,4 and 5 in the affirmative 16 and point Nos. 2 and 3 in the negative and as per final order, allowed the said appeal and set aside the judgment and decree passed by the Trial Court in OS No.111/2002 dated 17.2.2003 and decreed the suit of the plaintiff with costs, holding that plaintiff has got 1/3rd share in suit schedule properties bearing RS No.212/3 and 212/5 of Havanagi, Hanagal Taluk and defendant Nos. 1 to 9 have 1/3rd share in suit schedule properties and that defendant No.10 is entitled to 1/3rd share in the said properties. Further, it is ordered that since suit schedule properties are assessed to land revenue by the Government, plaintiff is required to be put in possession of his 1/3rd share of those properties after partition being made by Deputy Commissioner, Haveri, or any gazetted subordinate of Deputy Commissioner, Haveri, deputed by him in this behalf in accordance with law, as per Section 54 read with Order 20 Rule 18 of CPC. Since no specific evidence is adduced by plaintiff with regard to second prayer of para No.16 of the plaint, has rejected the prayer of plaintiff for grant of mesne 17 profits at the rate of `15,000/- per year for the period of three years.
16. Being aggrieved by the said judgment and decree passed by the First Appellate Court, the defendants- appellants felt necessitated to present this appeal.
17. Heard the learned counsel for the parties. When this matter had come up for Admission, this Court had admitted the appeal for considering the following question of law:
1. Whether the First Appellate Court was justified in reversing the finding of the Trial Court having regard to the fact that there was partition of the family properties in 1962 and occupancy rights has been confirmed on the appellants in 1976?
18. The undisputed facts of the case are that, deceased Sri. Shanmukhappa and Gureppa are the step brothers. It is also not in dispute that, they lived together in joint family. Sri. Shanmukhappa being the elder son was the Kartha/Manager of the family. It is the case of the defendants that, deceased Sri. Shanmukhappa was cultivating the suit lands as tenant in his individual capacity and has filed Form No.VII before the Land Tribunal 18 for registration of occupancy rights and accordingly, occupancy rights were conferred in his favour in the year 1976. Further, it is not in dispute that, LC 242/1962 had been filed by the plaintiff for partition and separate possession before Munsiff, Haveri in respect of joint family properties, which was allowed and panch award was passed.
19. It is the specific case of the plaintiff that, he could not include the suit schedule properties in the said petition, since the lands were raitwari (tenanted) lands and that neither the plaintiff nor Sri. Shanmukhappa had ownership rights with regard to the said lands. Sri. Shanmukhappa died in the year 1987 and during his life time, without the knowledge of plaintiff and defendant No.10, he took steps to enter the names of defendant Nos. 2 and 6 as owners of lands bearing RS No.212/3 and 212/5 and when he came to know about the same, immediately, he filed a suit for partition contending that the suit properties are cultivated jointly by himself and his brother deceased Sri. Shanmukhappa and non mentioning of their names at the time of filing Form No.7 will not take away their legitimate 19 entitlement of their share, if once the occupancy rights are registered. But, this fact has not been looked into or considered or appreciated by the Court below. Further, it is significant to note that, DW2 himself has admitted in his cross examination that his father deceased Sri. Shanmukhappa was the head of the family of the Undivided joint family and looking after the administration and welfare of the family till 1982 and at that time he was aged about 15 years. Further on perusal of Ex.P5, which is Form No.VII filed by the deceased Sri. Shanmukhappa before the Land Tribunal for grant of occupancy rights, a mention is made with regard to filing of suit in LC 242/1962 before the Munsiff Court at Hanagal and with regard to 3 properties mentioned at 2nd half portion of page No.1 of Ex.P5. On perusal of Ex.P6 which is the certified copy of statement made by deceased Sri. Shanmukhappa before Land Tribunal, Hanagal in LRM:DSR:132:1 on 20.5.1974, last but 4th line of page No.1 of Ex.P6 reads as follows:
"£À£Àß ºÁUÀÆ £À£Àß vÀªÀÄäA¢gÀ SÁvÉAiÀÄ°è F PɼÀUÉ PÁt¹zÀ d«ÄãÀÄUÀ¼ÀÄ EzÀݪÀÅ:20
UÁæªÀÄ ¸À. £ÀA: PÉëÃvÀæ ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ºÁªÀtV 212:5 3-23) 212:3 2-19) gÉÊvÀ £ÁvɬÄAzÀ Last but 6th line of Ex..P.6 reads as follows:
"14 JPÀgÉ 17 UÀÄAmÉ ¸ÀéAvÀ d«ÄãÀÄ ºÁUÀÆ 6 J 2 UÀÄA gÉÊvÀ £ÁvɬÄAzÀ ¸ÁUÀĪÀ½ ªÀiÁqÀĪÀ d«ÄãÀÄ G½¢gÀÄvÀÛªÉ. ¨sÀÆ £ÁåAiÀÄ ªÀÄAqÀ½AiÀĪÀgÀÄ 6 J 2 UÀÄA d«ÄäUÉ zÁgÀt ºÀPÀÄÌ ªÀÄAdÆgÀ ªÀiÁrgÀÄvÁÛgÉ."
20. Further, in Ex.D1 there is a mention of execution of Will by Sri. Shanmukhappa Zalaki in favour of defendant No.6 bequeathing the suit properties. The said Will came to be registered on 30.12.1985 and in pursuance of the said Will, name of defendant No.6 came to be entered 21 as owner as per ME No.7145 at Ex.D2. Further, there is a mention in Ex.D3 that name of defendant No.6 in entered in pursuance of defendant No.4 relinquishing his rights with regard to land bearing RS No.212/5. The Land Tribunal, Hanagal conferred occupancy rights in favour of father of defendant No.1 as per order dated 20.5.1976 and accordingly, the name of father of defendant No.1 came to be entered as owner as per ME No.6366 dated 26.2.1978. Further, it could be seen from Ex.D9 certified copy of plaint filed by Sri. Karneppa in LC No.243/1962 before Munsiff at Haveri for partition that, suit properties involved in the said suit are not the subject matter of OS No.111/2002.
21. Further, it is pertinent to note that, learned counsel for plaintiff placed reliance on the Full Bench decision of this Court reported in KLR 1992, Karnataka page 1359 (Booda Poojary Vs. Thomu Poojarthy ), wherein it is held that upon grant of occupancy rights, lease hold rights stand converted into free hold rights without damaging rights of family or member of the family. It is also held by this Court in the aforesaid case that, it is open for a member 22 of joint family to claim a share or rights in the lands which occupancy rights are conferred in the competent Civil Court.
22. Learned counsel for plaintiff has also placed reliance on the ruling of the Apex Court reported in ILR 1994 Karnataka page 2327, wherein, it is held that, it is the Land Tribunal which is competent to adjudicate the point of tenancy of agricultural land and decision of the Land Tribunal is final on the above said point and Civil Court is competent to decide the other issues. In view of the well settled principles of law laid down by the Apex Court and this Court in hosts of cases that, if the occupancy rights is registered in the name for kartha/manager of the joint family, the other members of the joint family are entitled for occupancy rights and they are entitled to their respective shares. But these aspects of the matter has not been looked into or considered or referred by the Trial Court while deciding the matter. Taking all these aspects of the matter into consideration, the First Appellate Court, after re- appreciation of the oral and documentary evidence and other material available on file has recorded the finding of fact 23 that, even though father of the defendant No.1 was cultivating the suit property in question personally, and since, partition as per plaintiff took place in the year 1962 and since the plaintiff is a member of Hindu Undivided joint Family has legal right in suit schedule properties, in view of the admission made by DW2 in his cross examination that his father was the head of the family and he being the kartha of the family looking after the entire administration of the family and in view of not including the suit properties in the earlier suit, plaintiff and defendant No.10 are entitled to their respective shares and accordingly, allowed the said appeal by setting aside the impugned judgment and decree passed by the Trial Court. Therefore, I am of the considered view that the First appellate Court is justified in allowing the appeal filed by the plaintiff and setting aside the judgment and decree passed by the Trial Court after assigning valid reasons. The reasoning given by the First Appellate Court is well founded and well considered one and following the well settled law laid down by this Court and Apex Court and interference by this Court is not called for. Hence, the 24 substantial question of law raised in this case is answered in the negative.
23. For the foregoing reasons, the appeal filed by the appellants is dismissed as devoid of merits. Ordered accordingly.
Sd/-
JUDGE tsn*