V. SURIAPPA RAO, J.

1. This appeal is filed against the Judgment and Decree dated 17th August 2005 in O.S. No.208/1994 on the file of the Principal Civil Judge (Sr.Dvn.) and CJM, Mangalore.

2. The plaintiffs filed the suit for partition and separate possession of their share and for mesne profits. The Trial Court decreed the suit for partition and for mesne profits. Aggrieved by the Judgment and Decree passed by the Trial Court, the defendant No.1 filed this appeal. For the sake of convenience the parties are referred to as arrayed in the suit.

3. It is the case of the plaintiffs that they are the children of late Iddikunhi through his second wife late Pathumma and the defendants are the children of the Iddikunhi through his first wife late Ashyamma. During the life time of Iddikunhi he was cultivating the suit schedule properties. Subsequently, he died on 05.11.1979 after coming into force of the Karnataka Land Reforms Act. The 1st defendant being his elder son was allowed to file declaration under Section 48-A of the Karnataka Land Reforms Act on behalf of all children of late Iddikunhi. The Land Tribunal as per the order dated 21.10.1978 granted 'B' schedule property in the name of the 1st defendant only. Therefore, the 1st defendant is in possession and enjoyment of the property and 'B' schedule property consisting of more than 1200 yielding areca trees and 60 coconut trees, a house, cattle shed and bathroom and appropriating the income for himself. He has not complied with the demand made by the plaintiffs for partition though the plaintiffs and defendants are equally entitled for share in the properties. Therefore, the plaintiffs filed the suit for partition.

4. The 1st defendant resisted the suit filed by the plaintiffs denying the contentions of the plaintiffs that the suit schedule properties are the ancestral properties, the lease hold properties are cultivated by their ancestors and their late father Iddikunhi. He further contended that plaint 'B' schedule properties are his property in his individual capacity, even during the life time of their father he was cultivating the same. Therefore, he filed a Declaration also. The Land Tribunal conferred occupancy rights in his favour. He further contended that his father was not an agriculturist and he was a businessman. After the death of his mother and after the marriage of his father with 2nd wife, he obtained the lands on lease and took up cultivation and improved the 'B' schedule property by raising areca and coconut garden. As such, he is the absolute owner of the 'B' schedule property.

5. The 1st defendant further contended that his father was alive at the time of coming into force of the Karnataka Land Reforms Act, but he has not filed declaration. Therefore, his father has lost the right if any as such the plaintiffs have no right over the properties.

6. The other defendants filed written statement supported the contentions raised by the 1st defendant.

7. On the basis of the above pleadings, the Trial Court framed the following Issues :

1. Whether plaintiffs prove that the plaint 'B' schedule properties are the lease-hold properties of the ancestors and the father of plaintiffs and defendants?

2. Whether plaintiffs further prove that occupancy right of plaint 'B' schedule property was granted in favour of defendant No.1 for and on behalf of the family?

3. Whether plaintiffs further prove that the plaint 'B' schedule property is liable to be partitioned into 24 shares by metes and bounds and that the plaintiffs are entitled to 18 such shares?

4. Whether plaintiffs prove that they are entitled for mesne profits from the date of suit and if so, at what rate?

5. Whether defendants prove that plaint ‘B’ schedule properties are self-acquired leasehold properties of defendant No.1 and that defendant No.1 is in exclusive possession of the same and as such the same are not liable to be partitioned?

6. What order or decree the parties are entitled? Additional issu