(1.) THE appellant is assailing the judgment dated 24.07.2010 passed in R.A. No. 164/2005 to the extent where the Lower Appellate Court has excluded suit schedule item No. 4 property from the decree that had been granted by the trial Court to be partitioned as indicated therein.
(2.) THE plaintiffs viz, Smt. Susheelamma and Smt. Kempamma had instituted the suit in O.S. No. 419/1994 seeking for partition and separate possession of the suit schedule item properties. The appellant herein was arraigned as defendant No. 7 to the suit. Defendant No. 7 had filed his written statement whereunder he had also sought for a share in the properties. Ultimately, the trial Court on taking note of the rival contentions had framed as many as six issues initially and two additional issues thereafter. On considering the evidence that was tendered by the parties, the trial Court had decreed the suit in part insofar as Item Nos. 1 to 4 and 6 to 9. Defendants No. 3, 4 and 5 instituted the appeal in R.A. No. 164/2005. Defendant No. 8 under whom respondent No. 10 herein claims right to Item No. 4 property had filed the appeal in R.A. No. 222/2008. The Lower Appellate Court on considering the said appeal by its judgment dated 24.07.2010 though upheld the judgment and decree of the trial Court insofar as the suit item Nos. 1 to 3 and 6 to 9, however arrived at the conclusion that the inclusion of Item No. 4 property to be partitioned is not justified and excluded the same. It is to be noticed that while doing so, the said consideration was made in R.A. No. 164/2005 since R.A. No. 222/2008 filed by Sri A.M. Gopal was dismissed as it was not accompanied by an application seeking condonation of delay. Since Item No. 4 property has been excluded, the appellant is before this Court as otherwise he would have been entitled to a share in that property as well. Considering the nature of the contentions put forth before this Court, this Court by the order dated 20.09.2011 framed the following substantial questions of law:
(3.) A perusal of the questions of law raised would indicate that the conclusion ultimately that is required to be made is as to whether the Lower Appellate Court was justified in excluding the said property in Item No. 4 without raising a point for consideration in that regard. Though such substantial questions of law have been framed by this Court, what is also to be kept in view is the nature of the right that had been claimed by the appellant herein and the manner of consideration that had been made by the trial Court as well as the Lower Appellate Court and in that light, whether the contention as put forth by the appellant lead to a different conclusion than the one which has been made by the Lower Appellate Court.