RAMACHANDRA LINGA BHAT Vs. LINGAPPA MANJUNATH BHAT

JUDGEMENT

(1.) THIS Second Appeal under Section 100 of the Code of Civil Procedure is by the Defendant No. 1 is O. S. No. 5 of 1967 who was defending a partition suit on the file of the Court of the civil Judge, Uttar Kannlida, Karwar, instituted by the plaintiff - brother of the Defendant No. 1 with two other brothers being co-defendants initially and who had failed in such effort with the Trial Court decreeing the suit for partition allotting 1/4th share in favour of the branches of each of the four brothers in respect of the suit schedule properties and whose appeal in RA No. 22 of 1990 on the file of the Court of the District judge, Karwar, also failed along with certain other cross-objections filed by the plaintiffs, but being aggrieved by the lower Appellate Court, nevertheless, modifying the Judgment and decree as passed by the Trial court at the instance of the Defendant No. 5 in the suit which according to the present appellants is to the advantage of Defendant No. 5 and disadvantage of all other parties in the suit.

(2.) IT is mainly on the above ground to get over the modifying portion of the Judgment and decree as done by the lower Appellate Court, the present second appeal and also for seeking certain relief which the appellants failed in their appeal before the lower Appellate Court for the purpose of contending that excluding one suit item No. 5 - house property in Schedule-D to the plaint which was also liable to be partitioned amongst the brothers but had been found by the Trial Court to be self-acquired property of the Defendant No. 5 who was the son of Defendant No. 4 and which finding had come to be affirmed by the lower Appellate Court.

(3.) THIS Court while admitting the second appeal had framed the following substantial questions of law.