Venugopala Gowda,J

This appeal is filed by the plaintiff, against the judgment and decree dated 10.11.2006 of the District Judge, Kodagu-Madikeri in R.A.12/2002. By the said judgment/decree, the first Appellate Court reversed the judgment and decree of the Trial Court, which had decreed the suit.

2. One Sirakaje Subraya, had 5 sons, who all constituted a joint Hindu Family, governed by Mithakshara School of Hindu Law and possessed immovable properties at Korangala and Cherangala villages of Madikeri Taluk, Kodagu District. The genealogical tree is as follows:

SIRAKAJE SUBRAYA (PROPOSITUS) | | | | |

S.S.Bopaiah SS.Vasudeva S.S.Sukumara S.S. Ganesha S.S.Nagaraj Rao

(Plaintiff) (Defendant-1) (Dead) (Dead) (died-unmarried) | |

Smt.S.S.Pushpavathi Smt. Vijayalakshmi (wife) (Defendant-2) (wife) (defendant-2)

3. S.S.Bopaiah- the plaintiff, filed O.S.3/1998 in the Court of Civil Judge (Sr.Dn.), Madikeri, for partition by metes and bounds and for allotment of 1/4th share, in each of the plaint schedule properties and for separate possession. S.S.Vasudeva – the 1st defendant, filed written statement and contended that, the joint family properties were already subjected to partition under a partition agreement dated 8.3.1970 and separate shares allotted. Defendants 2 and 3, filed written statement, conceding the claim of the plaintiff and also sought for partition and allotment of separate shares to them, at 1/4th share each.

4. The Trial Court framed issues. During the trial, plaintiff deposed as PW.1. Exs.P1 to P5 were marked. For the 1st defendant, DWs.1 and 2 deposed. Exs.D1 to D4 were marked. Considering the rival contentions and after appreciation of the evidence, the Trial Court held that; defendant 1 failed to prove that there was a prior partition on 8.3.1970; that all the parties are entitled to 1/4th share each in the suit properties. The suit was decreed.

5. Aggrieved, the 1st defendant filed an appeal and reiterated the contentions raised in his written statement. That apart, it was contended that, the suit properties being Jamma lands, the suit is not maintainable and even otherwise, the appreciation of evidence by the Learned Trial Judge is wholly erroneous.

6. Learned first appellate Judge, after raising the point for consideration and upon re-appreciation of the evidence, held that, the judgment and decree passed by the Trial Court on the materials available on record cannot be said to be illegal. However, by noticing the contention with regard to the maintainability of the suit, raised for the first time in the appeal, by relying upon a decision in the case of B.R.SHARATHCHANDRA AND OTHERS vs. K.D. POOVAIAH AND OTHERS ILR 2006 KAR 3605, held that, since the parties belong to Coorg family and the suit properties are Bane lands, the suit is not maintainable. As a result, the appeal was allowed and the judgment and decree of the Trial Court, was set aside and the suit was dismissed, as not maintainable in law. Aggrieved, the plaintiff has filed this second appeal.

7. Sri M.V.Ramesh Jois, Learned Counsel appearing for the appellant, contended that:

(i) The decision on which reliance was placed by the first Appellate Court i.e., in the case of B.R.SHARATHCHANDRA (supra), is not applicable and that the Learned Judge has mechanically applied the said decision, without noticing the material facts and circumstances of the cases.

(ii) Maintainability of the suit was not in issue before the Trial Court and hence, the first appellate Court is not right in considering the issue of maintainability.

(iii) That withy the enactment of Karnataka Land Revenue Act, 1964, the Coorg Land and Revenue Regulations, 1899, has been repealed and hence, the suit for partition in the Civil Court in maintainable.

(iv) The decision in the case of MACHETTIRA MACHIAH vs. MACHETTIRA KARIAPPA ILR 1993 KAR 2673, has not been noticed and that, there is illegality committed in passing of the impugned judgment/decree.

8. Sri B.S.Basavaraju, Learn