J U D G M E N T

This matter is listed for admission. Heard the learned counsel for the appellant.

2. This second appeal is filed against the concurrent finding of the Trial Court.

3. The factual matrix of the case of the plaintiff before the Trial Court is that the suit schedule properties are the joint family properties of the plaintiff and the defendants. It is the contention of the plaintiff that earlier there was an oral partition between the plaintiff and the defendants about 20 years back. However, it is contended that the palupatti is not binding on the plaintiff and the same is null and void and fraud has been committed while partitioning the property and hence re-partition is required and claimed re-partition of the property claiming 1/4th share. The defendant Nos.1 and 2 appeared and filed the written statement admitting the relationship and earlier partition between the parties and in the said partition, suit schedule properties were partitioned equally in between the plaintiff and the defendants and prayed for dismissal of the suit. The defendant No.3 filed the written statement admitting the relationship between the parties and partition and contended that the mother of the plaintiff by name, Parvathamma had one brother by name Siddappa, who is residing in the same village and he had one daughter by name Basamma. Siddappa died leaving behind his only daughter Basamma. At that moment, the plaintiff and the defendants looked after the affairs of Basamma and thereafter her family was looked after by the plaintiff. He was enjoying the property of the said Basamma and he married Basamma and got the entire property belonging to her mother and deceased Siddappa. In view of the same, panchayathdars decided to allot only 14 guntas of land in the suit schedule property to the plaintiff instead of 1 acre. Furthermore, the said land was a fertile land and the plaintiff has got the property of his wife and his mother. There is no fraud and mischief took place as alleged by the plaintiff.

4. The Trial Court allowed the parties to lead evidence with regard to their respective contention to substantiate the same. The plaintiff examined himself as P.W.1 and examined four witnesses as P.W.2 to P.W.5 and got marked the documents at Exs.P.1 to 4. On the other hand, the defendants examined three witnesses as D.W.1 to D.W.3 and got marked the documents at Exs.D.1 to 5. The Trial Court having considered both oral and documentary evidence placed on record, answered issue No.1 in the negative in coming to the conclusion that as on the date of filing of the suit, suit schedule properties were not the ancestral and joint family properties. However, considering the pleadings of the parties, answered issue No.2 in the affirmative that already there was an oral partition 20 years back and the very contention of the plaintiff that palupatti is not binding on him is not accepted and so also not accepted the contention of the plaintiff that he is entitled for share in the property and dismissed the suit.

5. Being aggrieved by the judgment and decree of the Trial Court, R.A.No.162/2016 is filed. Having considered the grounds urged in the appeal memo, the First Appellate Court formulated the points as to whether the pleadings and evidence are sufficient to prove that the partition was obtained by fraud and misrepresentation and same is unjust and unfair and whether the judgment and decree of the Trial Court requires interference. The First Appellate Court considering the material available on record comes to the conclusion that fraud and misrepresentation has not been proved and extracted the admission on the part of P.W.1, which was elicited in the cross-examination and comes to the conclusion that question of re-partition does not arise. The material discloses that already there was a partition and dismissed the appeal.

6. Being aggrieved by the said concurrent finding, the present second appeal is filed before this Court

7. The learned counsel for t