Judgment :-

S.B. Sinha, J.

1. Leave granted.

2. Whether the High Court, while exercising its jurisdiction under Section 100 of the Code of Civil Procedure, could, while dictating the judgment, frame an additional question of law and allow the same without even referring to the questions of law formulated at the time of admission thereof, arises for consideration herein.

3. Before, however, adverting to the said question, we may notice the factual matrix involved in the matter.

One Nanjappa was the owner of the property. The admitted genealogical table of the

family is as under:

Nanjappa (Propositus)

4. Virupakashappa filed a suit for partition claiming share in Survey No.197/2 measuring 11 acres 22 guntas, Survey No.203/3 measuring 3.2 Channapasappa Mallappa Revanna acres, Survey No.203/6 measuring 2 acres 21 guntas and a house property situated at Chikkathotulkere, Tumkur Taluk, District Tumkur in the year 1996. Defendants-Respondents, inter alia, in their written statements denied Revanns Siddappa Chikkasiddappa Shetty Dead and unmarried (Dead) (Dead) and issueless and disputed the said genealogical table. It is profitable to refer thereto: "It is false to state that land bearing survey No.197/3 measures 11-22 guntas, schedule

T.C. Nanjappa properties are not appropriate with the existing Virupakashappa (Original Defendant-one. The plaintiff with a mala fide intention filed Plaintiff/Petitioner Dead this suit. Plaintiff has not got any kind of blood relationship with the defendants. The defendants grand father was enjoying the properties since long days back in the year 1946 when the grand father Sarvamangalarevenue entries were changed was died the Kathayni into (Widow) (D.1)(a)/ defendants fathers name, D.1(b)/Present since 1956 the

defendant Respondent

Present is enjoying the Respondent No.2

entire schedule

properties No.1

together with other properties as the absolute owner with title and possession. The defendant has sold piece of land for family maintenance. He has improved the said lands and he raised coconut trees with water supply some time he has raised loans by mortgaging the schedule properties.

Plaintiff is utter stranger and he has no relationship with this defendant. He has filed this suit to gain by an unlawful way."

It was furthermore contended that revenue entries throughout stood in the name of the father of the defendant and they have been exercising ownership rights over the lands in suit since time immemorial.

5. The learned Trial Judge, in view of the above noted rival contentions of the parties, inter alia, framed the following issues:

"1. Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants and they are in joint possession of the same?

2. Whether the plaintiff further proves that the defendant has unlawfully got the revenue entries of the suit schedule property to his own name, with ulterior motive and refused to allot the half share to the plaintiff in the suit schedule property?

3. Whether the plaintiff further proves that he is entitled for half share in the suit schedule property and mesne profits?"

Parties not only adduced oral evidence before the learned Trial Judge but placed on record a large number of documents to prove their respective cases. Before the learned Trial Judge a Deed of Mortgage purported to have been executed by Chennapasappa and Revenna was brought on record to show that they had been entering into separate transactions in regard to portions of the purported joint family property. The learned Trial Judge opined that the plaintiff is entitled to a decree for partition against the defendants except the property mortgaged by his father to one Krishnappa. It was held that there was no evidence regarding any further transaction.

6. An appeal preferred there against by the respondent was dismissed holding that the plaintiff was not able to prove that the properties in suit contin