Sannaningashetty Since Dead by His Lrs v. Sri Bettashetty @ Chikkashetty

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1099 OF 2013 (PAR) BETWEEN:

1. SANNANINGASHETTY SINCE DEAD BY HIS LRS

RAMAMMAA W/O SANNANIGASHETTY AGED ABOUT 58 YEARS R/A KYATHANAHALLY VILLAGE HAMPAPURA HOBLI H D KOTE TALUK MYSORE – 577 024

¶2SMT LAKSHMAMMA W/O BHAIRASHETTY AGED ABOUT 43 YEARS R/A TIPTUR VILLAGE K R NAGAR TALUK MYSORE – 577 023

¶3SRI MAHADEVASHETTY S/O SANNANINGASHETTY AGED ABOUT 41 YEARS R/A KYATHANAHALLY VILLAGE HAMPAPURA HOBLI H D KOTE TALUK MYSORE – 577 024

4. SMT CHIKKAMMA W/O NAGESH

by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

AGED ABOUT 38 YEARS R/A YELAWALA VILLAGE BEHIND POLICE STATION MYSORE TALUK MYSORE – 577 024

¶5SMT SAKAMMA W/O JAYARAM AGED ABOUT 33 YEARS R/A ARAKERE VILLAGE MANDYA DISTRICT – 577526

¶6SMT CHIKKATHAYAMMA W/O RANGASWAMY AGED ABOUT 26 YEARS R/A MANDAHALLY VILLAGE JAYAPURA HOBLI MYSORE TALUK – 577 021 …APPELLANTS

(BY SRI. A MADHUSUDHANA RAO & SRI. HEMANTH KUMAR, ADVOCATES)

AND:

¶1SRI BETTASHETTY @ CHIKKASHETTY S/O LATE BODASHETTY @ CHIKKASHETTY SINCE DEAD, REP. BY LEGAL REPRESENTATIVES

1(1) SMT. THIMMAMMA W/O LATE SRI BETTESHETTY AGED ABOUT 72 YEARS R/AT MANDAHALLY VILLAGE JAYAPURA HOBLI MYSORE TALUK

1(2) SMT. YASHODA D/O LATE SRI BETTESHETTY AGED ABOUT 50 YEARS D.NO.2614, HERIGERE KUMBARAGEERI 2ND CROSS

PULIKESHI ROAD LAKSHKAR MOHALLA MYSORE – 570001

1(3) SMT KAMALAMMA D/O LATE SRI BETTESHETTY AGED ABOUT 48 YEARS KYATHANAHALLI VILLAGE AND POST HAMPAPURA HOBLI H D KOTE TALUK MYSORE DISTRICT.

1(4) SMT SHARADAMMA D/O LATE SRI BETTESHETTY SINCE DECEASED BY LEGAL REPRESENTATIVES

1(4)(i) SRI. RAMAKRISHNASHETTY AGED ABOUT 55 YEARS

1(4)(ii) SRI. CHANDRASHEKAR SHETTY S/O RAMAKRISHNA SHETTY AGED ABOUT 30 YEARS

1(4)(iii) SRI SHAMSHETTY S/O RAMAKRISHNA SHETTY AGED ABOUT 25 YEARS

1(4)(iv) SMT. NETHRA D/O RAMAKRISHNA SHETTY AGED ABOUT 30 YEARS

RESPONDENT Nos.1(4)(i) TO 1(4)(iv) ARE R/AT THATTEKERE VILLAGE AND POST ANUGADU HOBLI HUNSUR TALUK MYSORE DISTRICT – 571 105

1(5) SMT. SHANTHAMMA D/O LATE SRI. BETTESHETTY AGED ABOUT 42 YEARS KANDEGALA VILLAGE AND POST

RAVANDOORU HOBLI PERIYAPATTANA TALUK MYSORE – 571 107.

¶2SRI KAMALAMMA W/O MANCHASHETTY D/O SRI BETTASHETTY AGED ABOUT 43 YEARS R/A KYATHNAHALLY VILLAGE HAMPAPURA HOBLI H D KOTE TALUK

¶3SRI DASASHETTY S/O LATE CHIKKASHETTY AGED ABOUT 68 YEARS R/A KYATHNAHALLY VILLAGE HAMPAPURA HOBLI H D KOTE TALUK

¶4SMT. SUMATHI R UDUPA W/O SRI A RAGHUPATHI UDUPA D/O SRI INDIRA NEJARU MAJOR R/AT No.6/181, PARIJATHA NEAR NAJAR ASHWATH KATTE KALYANAPURA, SANTHE KATTE UDUPI TOWN UDUPI DISTRICT – 576 101

¶5SRI. SOMASHEKAR V S/O SRI. VENKATESH AGED ABOUT 28 YEARS R/AT No.352, BEHIND MARIGIDI ELAWALA MYSORE – 571130

¶6HARISH M S/O MOGONNA 34 YEARS No. 206 , ROMOMANDIRA ROAD

THANNA CHIKKAPOLU MYSORE. …RESPONDENTS

(BY SRI. N D ONKARAPPA & H S SUBRAMANYA SWAMY, ADVOCATES FOR R1(4)(ii) & R2 (NOC) SRI. S RAVICHANDRA, ADVOCATE FOR R5 SRI. N.G. KOTRE, ADVOCATE FOR R1(1, 2, 3 & 5) R1(4)(i), R1(4)(iii, iv) NOC GIVEN FOR R1(4)(ii) V/O DATED 02.08.2016 SERVICE OF NOTICE IN R/O R3 DASASHETTY H/S R6 SERVED)

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 27.3.2013 PASSED IN R.A.NO.338/2012 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, HUNSUR, MYSORE DISTRICT, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 14.6.2012 PASSED IN O.S.NO.339/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE, HUNSUR.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

ORAL JUDGMENT

¶1This regular second appeal is filed by the appellants challenging the judgment and decree dated

27.03.2013 passed in R.A. No.338 of 2012 by the learned Fast Track Court, Hunsur, Mysore District (for short, 'the First Appellate Court'), confirming the judgment and decree dated 14.06.2012 passed

in O.S. No.339 of 2006 by the learned Senior Civil Judge, Hunsur (for short, 'the Trial Court').

¶2For the sake of convenience, the parties are referred to based on their ranking before the Trial Court. The appellants were the plaintiffs and the respondents were the defendants.

¶3Brief facts leading rise to the filing of this appeal are as follows:

¶4The plaintiffs filed a suit for partition and separate possession of the suit schedule properties. It is the case of the plaintiffs that original plaintiff—Sanna Ningashetty, and defendant No.1—Bettashetty are the brothers and sons of Late Bodashetty alias Chikkashetty. All the suit schedule properties are their joint family properties and there is no partition effected between the plaintiff and defendant No.1. Defendant No.1 has deliberately changed the khata in favour of defendant No.2, who is none other than

his daughter. Defendant No.1 is trying to alienate the suit schedule properties. He has also given the particulars of the lands as to which are the suit schedule properties. The plaintiffs demanded for a partition and separate possession, but defendant No.1 refused to effect a partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession.

¶5Defendant No.1 filed a written statement admitting the relationship between the parties to the suit and contended that there was a partition among defendant No.1 and his brothers. A memorandum of partition was recorded on 06.12.1965 styled as "Palu Pareekath". According to it, the following properties have fallen to the share of plaintiffs and defendant No.1: Share of the plaintiff – Sannaningashetty

¶1Eastern side 2½ Ankanas of a Small Tiled House residential house with abuting vacant side and Amage Kottige.

II. Eastern side of Sy.No. 167 measuring 0-19 3/4 guntas of wet land (which is called as yereya gadde) of Karigala Village

III. Land bearing Sy.No.57 measuring 2-20 acres, which is called as kattehola with one Kondaga, Land bearing Sy.No.57 measuring 1-20 acres, it is called as poorvadhi holadalli of Thandasipura Village. (it is item No.5 in the plaint schedule property).

IV. Land bearing Sy.No. 39 block No.1 measuring 3-00 acres of Thandasipura, which is called as thakkalu.

V. Land bearing Sy.No.13/1 measuring 0-36 guntas, which is called as Maregowdanahola full of Kyathanahally Village. (it is item No.2 in the plaint schedule property)

Share of the Defendant No.: 1-Sri Chikkashetty @ Bettashetty

¶1Western side 2½ Ankans of a Small tile residential house, with abutting vacant site and House of Hanuma.

II. Wet land bearing Sy.No.166 measuring 3½ guntas of Karigala Village, Which is called as Narappana Gadde.

III. Land bearing Sy.No.179/1 measuring 1-25 acres and Sy.No.179/3 measuring 0-21 guntas of Kyathanahalli village, which is called as Big Hola with 3 Kondagas.

IV. Northern Side of the land bearing Sy.No.57 measuring 1-35, acres of Thandasipura Village.

V. Land Bearing Sy.No.39 Block No.1 measuring 3-30 acres of Kyathanahalli Village, which is called as thakkalu.

VI. Land bearing Sy.No.2/5 measuring 2-02 acre of Kyathanahalli Village, which is called as "Mantappada Hola" and debts of Rs.3,000=00.

That the defendant No.1 has repaid the said debts.

¶6It is contended that defendant No.1 had purchased item No.1 from A.Rajagopalshetty and since from the partition in 1965, defendant No.1 has been enjoying the property. On

23.10.1998, defendant No.1 executed a Mortgage Deed in respect of the land bearing Survey No.2/5, measuring 24 guntas in favour of Rangegowda, Somegowda and Papegowda, each to the extent of 08 guntas out of 02 acres 02 guntas.

¶7Defendant No.1 executed a Mortgage Deed in favour of Basavegowda in respect of the land bearing Survey No.2/5 measuring 02 acre 03 guntas for a consideration amount of ₹10,000/- i.e., Item No.1 of the suit schedule properties on

10.01.1996. Defendant No.1 executed a mortgage deed in favour

of Basavegowda in respect of same survey number and to the same extent on 17.06.1998.

¶8The plaintiffs are in peaceful possession and enjoyment of Item No.2 of the suit schedule properties and the revenue entries are standing in the name of Chikashetty @ Sannahyda, who is the cousin brother of the plaintiff and defendant No.1. It is contended that as on the date of filing of the suit, the plaintiffs and defendants were not the members of Hindu joint family. Hence, prays to dismiss the suit against defendant No.1.

¶9Defendant No.2 filed a separate written statement denying the averments made in the plaint and contended that there was a partition effected between the plaintiffs and defendant No.1 and there is no cause of action for the plaintiffs to file a suit for partition and separate possession.

¶10The husband of defendant No.2 has been in unauthorised occupation of land bearing Survey No.39 measuring approximately 02 acres, which is abutting to the land of defendant No.1. On

21.12.1977, the marriage of defendant No.2 took place with defendant No.1. Defendant No.1 was permitted to cultivate the share of defendant No.2 in land bearing Sy.No.39, Block No.1, approximately measuring 3.15 acres. From 1977, defendant No.2 and her husband have been cultivating the land and are in peaceful possession and enjoyment of the suit land.

¶11On 10.12.1998, Manchashetty, the husband of defendant No.2, made an application for regularisation of unauthorised occupation of the said land. The said application is pending for consideration. Hence, prays to dismiss the suit against defendant No.2 in respect of Survey No.39.

¶12The Trial Court based on the rival pleadings of the parties framed the following issues: "1. Whether the plaintiff proves that the suit schedule properties are the joint family properties of him and 1st defendant?

¶2Whether the 1st defendant proves that there was a partition between him, the plaintiff and his brothers of their joint family properties on 6.12.1965?

¶3Whether the 1st defendant proves that the suit is not maintainable for non-joinder of necessary parties and non-inclusion of the properties bearing Nos.167, 179/1, 179/3 and the houses bearing No.178 & 180 and other residential house properties and vacant site into a common hotch-potch?

¶4Whether the 1st defendant proves that the suit is barred by law of limitation?

¶5Whether the 2nd defendant proves that her husband is in unauthorised occupation of the land bearing

Sy.No.39, TQAZ measuring 2 acres which is abutting to the land of the 1st defendant?

¶6Whether the plaintiff is entitled for the relief of partition? If so, at what rate?

¶7What order or decree?" Addl.Issue: "1. Whether the 1st defendant proves that item No.10 of plaint schedule belongs to Kantaharaja Shetty, item No.11 belongs to himself and item No.12 to one Devashetty as contended in para-4, 5 and 6 of his additional written statement?"

¶13The plaintiff died during the pendency of the suit and his legal representatives were brought on record.

¶14To substantiate his case, the plaintiff got himself examined as PW1, examined two witnesses as PW2 and PW3 and marked 13 documents as Exhibits P1 to P13.

¶15In rebuttal, defendant No.1 was examined as DW1, defendant No.3 was examined as DW2, examined two more witnesses as DW3 and DW4. In all, 88 documents were marked as Exhibits D1 to D88.

¶16The Trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue No.1 as per the discussion; issue No.2 in the affirmative; issue No.3 and additional issue No.1 partly in the affirmative; issue Nos.4, 5 & 6 in negative; and issue No.7 as per final order. Ultimately, the Trial Court dismissed the suit vide judgment dated 14.06.2012.

¶17Plaintiffs aggrieved by the dismissal of suit in O.S. No.339 of 2006 preferred an appeal in R.A. No.338 of 2012 on the file of the learned Fast Track Court, Hunsur.

¶18The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: "1. Whether the I.A. No.1 filed under section 151 of CPC by the appellant No.1(c)/plaintiff No.1(c) is deserves to be allowed?

¶2Whether the respondent No.1 proves that there was already partition between himself and the original plaintiff dated 0612.1965, accordingly he is in his share as shown in the palu parikathu marked as Ex.D-83?

¶3Whether the impugned judgment and decree under appeal passed by the lower court is illegal, capricious, arbitrary which call for interference of this court?

¶4What order?"

¶19The First Appellate Court, after re-appreciating the entire evidence on record, answered point No.1 partly in the affirmative, point No.2 in the

affirmative, point No.3 in the negative and point No.4 as per the final judgment. The appeal was dismissed, however, while dismissing the appeal, the First Appellate Court partly allowed the application in I.A. No.1 filed by plaintiff No.1(c), and defendant No.1 was directed to give consent to mutate the name of appellant No.1(c)/plaintiff No.1(c) in respect of Sl.Nos.2, 3 and 5 of the properties as shown in I.A. No.1; with regard to Sl.Nos.1 and 4 properties, as shown in I.A. No.1, the claim was rejected.

¶20The plaintiffs aggrieved by the impugned judgment have filed this regular second appeal.

¶21Heard the arguments of the learned counsel for the plaintiffs and learned counsel for the defendants.

¶22Learned counsel for the plaintiffs submits that the defendants in paragraph 11 of the written statement have clearly admitted that there was a partition effected between the original plaintiff and his

brothers and a memorandum of partition was recorded on 06.12.1965 and under the said partition, the properties fell to the share of plaintiff and defendant No.1.

¶23He submits that the plaintiffs filed I.A. No.1 before the First Appellate Court seeking for a direction to defendant No.1 to give his consent to change the khata in respect of the following properties: "1. Land bearing Sy.No.167, measuring

0.19 ¾ guntas, of wet land as the Eastern side of Karigala village (which is called as yereya gadde)

¶2Land bearing Sy.No.57 measuring

1.20 acres, which is called as Kattehola with one Kondaga.

¶3Land bearing Sy.No.57 measuring

1.20 acres, is called as Poorvadhi holadalli of Thondasipura village(within item No.5 in the plaint schedule property)

¶4Land bearing Sy.No.39/1, measuring

3.15 acres of Thondasipura which is called as Thakkalu.

¶5Land bearing Sy.No.13/1, measuring

0.36 guntas which is called as Maregowdanahola full of Kyathanahalli village."

¶24The First Appellate Court partly allowed the said application, only in respect of Sl.Nos.2, 3 and 5 properties shown in I.A. No.1 (supra), however, it rejected I.A. No.1 in respect of Sl.Nos.1 and 4 properties shown in I.A. No.1 (supra).

¶25Learned counsel for the plaintiffs submits that defendant No.1 himself has admitted that there was a prior partition of the properties including Sy.Nos.167 and 39/1.

¶26However, the First Appellate Court has declined to grant relief in respect of Sy.No.167 (Sl.No.1) on the ground that the said property was not the subject matter of the suit. As far as claim in respect of

Sy.No.39/1, which is also rejected by the First Appellate Court, is concerned, it was held by the First Appellate Court that the said property was owned by defendant No.1 and the same is standing in the name of defendant No.2.

¶27He submits that the First Appellate Court without examining how defendant No.2 had acquired the said property, rejected the claim.

¶28He submits that defendant No.1 has executed a gift deed and that no document has been produced to show how defendant No.2 has acquired the property bearing Sy.No.39/1. The First Appellate Court committed an error in rejecting the claim in respect of Sy.No.167. He submits that during the pendency of this appeal, the plaintiffs have filed an application to include Sy.No.167. The said application came to be allowed and the land bearing Sy.No.167 was

included in the suit schedule properties. Hence, he prays this Court to allow the appeal.

¶29Learned counsel for the defendants submits that there was a partition in between the original plaintiff and his brother. The main dispute between the plaintiff and defendant No.1 is Sy.Nos.167 and 39/1. The plaintiff is claiming the land bearing Sy.No.39/1 which fell to the share of defendant No.1. Hence, the plaintiff has no right to claim a share in the property bearing Sy.Nos.39/1 and 167. He submits that the land bearing Sy.No.39/1 is standing in the name of defendant No.2 and not in the name of defendant No.1.

¶30He further submits that the First Appellate Court was justified in rejecting the claim in respect of Sy.Nos.39/1 and 167 and rightly passed by the impugned judgment and hence, prays to dismiss the appeal.

¶31This Court vide order dated 09.09.2025 framed the following substantial questions of law for consideration: "1) Whether the Trial Court is justified in dismissing the suit after holding that the previous partition pleaded by the defendants in terms of Ex.D83 is inadmissible in evidence? 2) Whether the First Appellate Court is justified in dismissing the appeal recording a finding that there is previous partition?"

¶32Both the substantial questions of law are interlinked and they are taken together for common discussion to avoid repetition of facts. Reg. Substantial Questions of Law:

¶33The plaintiffs have filed a suit for partition and separate possession. One Late Bodashetty @ Chikkashetty was the original propositus. The

plaintiff and defendant No.1 are the brothers and sons of Bodashetty. The suit schedule properties are the joint family properties of the plaintiff and defendant No.1 are the members of Hindu undivided family. No partition is effected between the plaintiff and defendant No.1. The plaintiff demanded for a partition and separate possession. Defendant No.1 refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession.

¶34The plaintiff, to substantiate his case examined himself as PW-1 and has reiterated the plaint averments in the examination-in-chief and produced the documents: • Exhibit P1 is the Genealogical tree; • Exhibits P2 & 8 are the RTC extracts; • Exhibits P9 and 10 are Chekbandi; • Exhibit P11 is the copy of the legal notice; • Exhibit P12 is the postal receipt; • Exhibit P13 is the postal cover and

• Exhibit P13(a) is the copy of the notice;

¶35During the course of cross-examination it was suggested to PW-1 that there was a prior partition between the plaintiff and defendant No.1 and the partition was reduced into writing, styled as "Palu Pareekhat" dated 06.12.1965. The said suggestion was denied by PW-1.

¶36The plaintiffs also examined two witnesses as PWs-2 and 3, who reiterated the plaint averments in their deposition.

¶37In rebuttal, the defendants examined defendant No.1 as DW-1. He has deposed that there was a prior partition in between the plaintiff and defendant No.1. In the said partition, the properties shown in paragraph No.11 of the written statement fell to the share of the plaintiff and the remaining properties fell to the share of defendant No.1. On the basis of the

said partition, the names of the parties were entered in the revenue records.

¶38Defendant No.3 was examined as DW2, who reiterated the written statement averments in his examination-in-chief.

¶39To prove that there was a prior partition between the plaintiff and defendant No.1, defendant No.1 examined witnesses as DWs-3 and 4.

¶40DW4 is the power of attorney holder of defendant No.2. In order to establish their case, defendants have produced 88 documents as exhibits D1 to D88.

¶41From the perusal of the entire evidence on record, it is clear that the plaintiffs filed a suit for partition and separate possession alleging that the suit schedule properties are the joint family properties of the plaintiff and defendant No.1 and no partition was effected. On the other hand, defendant No.1 filed a written statement contending that there was a prior

partition in between the plaintiff and defendant No.1 and in the said partition, the properties shown in paragraph 11 of the written statement fell to the share of the plaintiff and defendant No.1. On the basis of the said partition, the names of the plaintiff and defendant No.1 were entered in the revenue records.

¶42It is evident that though the name of defendant No.1 is shown in the revenue records, that was not on the basis of the alleged partition.

¶43Defendant No.1 in the written statement has clearly admitted that there was a prior partition.

¶44I have perused the written statement filed by defendant No.1. Paragraph No.11 thereof reads as follows: "11. The defendant No.1 submits that, the plaintiff and defendant No.1 are brothers. There was a partition amongst the brothers and a written memorandum of partition was recorded on 06.12.1965

styled as "Palu Pareekathu". According to which, the following survey numbers and house properties, vacant site have fallen (allotted) to the share of the plaintiff herein and defendant No.1 herein. Share of the plaintiff – Sannaningashetty

¶1Eastern side 2½ Ankana of a Small Tiled House residential house with abutting vacant side and Amage Kottige.

¶2Eastern side of Sy.No. 167 measuring 19¾ guntas of wet land (which is called as yereya gadde) of Karigala Village

¶3Land bearing Sy.No.57 measuring 2-20 acres, which is called as kattehola with one Kondaga.

¶4Land bearing Sy.No.57 measuring 1-20 acres, it is called as poorvadhi holadalli of Thandasipura Village. (it is item No.5 in the plaint schedule property).

¶5Land bearing Sy.No. 39 block No.1 measuring 3-00 acres of Thandasipura, which is called as thakkalu.

¶6Land bearing Sy.No.13/1 measuring 0-guntas, which is called as Maregowdanahola full of Kyathanahally Village. (it is item No.2 in the plaint schedule property)

Share of the Defendant No.: 1-Sri Chikkashetty @ Bettashetty

¶1Western side 2½ Ankana of a Small tiled residential house, with abutting vacant site and House of Hanuma.

II. Wet land bearing Sy.No.166 measuring 3½ guntas of Karigala Village, Which is called as Narappana Gadde.

III. Land bearing Sy.No.179/1 measuring 1-25 acres and Sy.No.179/3 measuring 0-21 guntas of Kyathanahalli village, which is called as Big Hola with 3 Kondagas.

IV. Northern Side of the land bearing Sy.No.57 measuring 1-35, acres of Thandasipura Village.

V. Land Bearing Sy.No.39 Block No.1 measuring 3-30 acres of Kyathanahalli Village, which is called as thakkalu.

VII. Land bearing Sy.No.2/5 measuring 2-02 Kyathanahalli Village, which is called as "Mantappada Hola" and debts of Rs.3,000=00.

That the defendant No.1 has repaid the said debts."

¶45From the perusal of paragraph 11, it clearly discloses that a partition was recorded on 06.12.1965 and in the said partition, the properties (as extracted

above) fell to the share of the plaintiff and defendant No.1.

¶46As there was a prior partition between the plaintiff and defendant No.1, as per the memorandum of partition dated 06.12.1965.

¶47During the pendency of the appeal before the First Appellate Court, the plaintiff filed an application I.A. No.1 of 2023 seeking change of Khata in respect of the properties that fell to the share of the plaintiffs.

¶48Defendant No.1 filed an objection to the said application. The First Appellate Court allowed the said application in part excluding the lands bearing Sy.Nos.167 and 39/1.

¶49The First Appellate Court has rejected the claim of the plaintiff in respect of the land bearing Sy.No.167 on the ground that the same is not the subject matter of the suit.

¶50According to the plaintiffs, the said land is not included in the suit schedule properties and as far as Sy.No.39/1 is concerned, the said property is standing in the name of defendant No.2.

¶51Admittedly, during the pendency of this appeal, the plaintiff has filed an application to include Sy.No.167 and the said application came to be allowed by this Court and Sy.No.167 was included in the suit schedule properties as item No.13 and the plaintiff has carried out the amendment in the original plaint.

¶52Insofar as Sy.No.39/1 is concerned, the First Appellate Court has rejected the application on the ground that the said property is standing in the name of defendant No.2. Though defendant No.2 has filed the written statement but defendant No.2 is unaware as to when she had acquired Sy.No.39/1. In the absence of title deeds/documents, the First Appellate

Court committed an error in rejecting the application insofar as Sy.No.39/1 is concerned.

¶53In view of the admission made by defendant No.1 in the written statement that there was a prior partition in between them and a memorandum of partition came to be executed between the parties, though the Trial Court has dismissed the suit holding that there was a prior partition as pleaded by the defendants, in terms of Exhibit D-83. Admittedly, Exhibit D-83 is an unregistered document and as such, it is inadmissible.

¶54At this stage, learned counsel for defendant No.1, on instructions, submits that defendants have no objection to enter the name of the plaintiffs in the revenue records in respect of the properties which have been allotted to the share of the plaintiffs. To that extent, the instant appeal may be disposed of.

¶55Hence, the substantial questions of law do not arise for consideration.

¶56In the result, I pass the following: ORDER

(i) This Regular Second Appeal is dismissed.

(ii) Liberty is reserved to the plaintiffs to get the Khata transferred in their names in respect of the properties that fell to their share, including Sy.No.167.

(iii) Learned counsel for the plaintiffs submits that in view of the dismissal of the appeal, plaintiffs do not press the pending interlocutory applications and prays to dispose of the same accordingly. Submission is placed on

record. In view of the submission, pending interlocutory applications are dismissed as withdrawn.

Sd/- (ASHOK S.KINAGI) JUDGE

RK List No.: 2 Sl No.: 1