V. Gopala Gowda, J.--This Regular Second Appeal is filed by the Defendant questioning the correctness of the judgment and Decree dated 12.4.2000 passed by the Prl. Civil Judge (Sr. Dn.), Tumkur in RA 93/1999 and prayed to restore the judgment and Decree passed in OS 439 of 1989 dated 5.6.1990 by the Prl. Munsiff, Tumkur by allowing this Regular Second Appeal after answering three substantial questions of law framed at paragraph 5 of the Memorandum of Appeal, urging various legal grounds.

2. The rank of the parties is referred to in the judgment as has been assigned in the plaint presented before the Trial Court for the sake of convenience.

3. This Court at the time of admission of this Regular Second Appeal on 6.12.2000 has framed the following substantial question of law for its consideration:

The substantial question of law to be gone into in this appeal is that whether the first appellate Court is justified in law suo-motu coming to the conclusion that the self-acquired property of the Appellant is thrown into common hotchpot even though the Respondent has not specifically pleaded and raised the issue and adduced the evidence?

4. The learned Counsel appearing on behalf of parties addressed arguments far and against on the aforesaid substantial question of law. The pleadings, facts and findings recorded in the judgments passed by the Courts below are not adverted to in this judgment as both the Courts have extensively referred to the facts and recorded their respective findings with their reasons in answer to contentious issues and the points framed by them and answered by them. In this judgment certain relevant and necessary facts for answering the questions of law are stated as hereunder:

5. The original suit was filed by the Plaintiff for partition and separate possession of his half share of the suit schedule properties by metes and bounds and for mesne profits to be ascertained under Order XX, Rule 12 Code of Civil Procedure with costs.

6. The Defendant filed statement admitting the relationship between himself and Plaintiff contending that he is son born to the first wife and Plaintiff born to the second wife of late Gaviyappa. The plaint averments in so far as facts pleaded that Defendant and Plaintiff are members of joint Hindu Family and the Defendant being eldest in the family is the manager of the joint family of Plaintiff and Defendant and the plaint schedule item properties 1, 5, 8 and 9 are the ancestral properties and suit item Nos. 2, 3, 4, 6 and 7 are the properties acquired by the Defendant as Manager of the joint family from out of the joint family funds. At the time of acquisition of the properties mentioned at items Nos. 2, 3, 4, 6 and 7 the Plaintiff and Defendant were in joint possession of the properties and enjoying the same jointly by them. Further the Defendant had denied the other averments of the plaint that properties are acquired by the Defendant as Manager of the joint family from out of the joint family funds and denied the suit schedule properties are joint family coparcenary properties as alleged in the plaint. Therefore, the Defendant has asserted that the above said suit item properties are not at all joint family properties and therefore the Plaintiff is not entitled for the relief as prayed in the original suit. Therefore, he has properties referred to supra no share can be allotted in favour of the Plaintiff and pass the judgment and Decree. Further it is stated that there is no cause of action as alleged in the plaint has arisen for institution of original suit and therefore he has prayed for dismissal of the original suit.

7. On the basis of aforesaid pleadings of the parties to the suit the Trial Court has framed six issues for its consideration and answered the same by referring its findings with reasons in its judgment. The parties before the Trial Court in support of their respective claim and counter claim have examined on behalf of Plaintiff PW. 1 and PW. 2 and produced and