JUDGMENT

This appeal is filed challenging judgment and decree dated 16.03.2018 in R.A.No.8/2013 passed by I Additional Senior Civil Judge and CJM, Mandya.

2. Sri L.Raja, learned counsel for appellants submits that appellants herein were legal representatives of original defendant. Respondent had filed O.S.no.496/2008 for relief of partition and separate possession of half share in suit schedule properties. He had also filed O.S.no.133/2009 for permanent injunction. It was submitted, in said suit, defendant had specifically contended that plaintiff was not entitled to partition in view of previous partition between families of plaintiff and defendant in year 1962. It was also contended that suit was not tenable on account of non-inclusion of all joint family properties.

3. Based on pleadings, Trial Court had framed following issues:

"ISSUES IN O.S.496/2008

1) Whether the plaintiff proves that, the suit schedule properties are joint family properties?

2) Whether the plaintiff entitled for legitimate half share in suit schedule properties?

3) Whether the plaintiff entitled for mesne profit as claimed in plaint averments?

4) Whether the plaintiff s entitled for relief as sought for?

5) What order or decree?

ISSUES IN O.S.133/2009

1) Whether the plaintiff proves that, he is in the peaceful possession and enjoyment of the suit schedule properties as on the date of the suit?

2) Whether the plaintiff proves the alleged interference from defendants?

3) Whether the plaintiff entitled for the relief of Permanent injunction?

4) What order or decree?"

4. Same was answered, which reads as under:

"10) My findings to the above issues in O.S.496/2008 are as under:-

Issue No.1-in the Negative, Issue No.2-in the Negative, Issue No.3-in the Negative, Issue No.4-in the Negative, Issue No.5-as per the final order.

11) My findings to the above issues in O.S.133/2009 are as under:-

Issue No.1-in the Negative, Issue No.2-in the Negative, Issue No.3-in the Negative, Issue No.4-as per the final order."

5. After recording evidence thereon, trial Court dismissed both suits. Aggrieved, plaintiff filed R.A.no.8/2013 only against judgment and decree in O.S.no.496/2008. It was opposed on ground that plaintiff had deliberately failed to include all suit schedule properties. Despite said contention having been taken by defendant Appellate Court passed decree, remanding back to Trial Court for inclusion of left-out properties, which would not be tenable. First Appellate Court had directed plaintiff to include following properties:-

"Sy.Nos.225, 9, 211, 516, 236, 218, 132, 249, 231, 51/6, 200/4, 224/3, 224/3B, 213/10, 426, 413, 418 and 419"

Specific issue is framed:-

"Whether a suit is bad for non-joinder of all joint family properties?"

6. It was submitted in view of objections filed by appellants/defendants against application for amendment of plaint, wherein appellants/defendants tabulated 53 items of properties were left-out from suit schedule. But in remand order, only few properties were directed to be included, would not be justifiable. Hence, sought for allowing appeal.

7. On other hand, Sri Harsha V., learned counsel appearing for Sri Rajayoga.K., learned counsel for respondent- plaintiff sought to oppose appeal. It was contended that remand to Trial Court was not restricted to addition of specific properties but for inclusion of left-out properties. It was specifically observed by Appellate Court that parties would be required to lead evidence regarding all joint family properties.

Same would provide an opportunity to defendants herein to establish whether any properties were left-out and seek inclusion. Under such circumstances, there would be no justification for appeal and sought dismissal.

8. This Miscellaneous Second Appeal is filed under Order

45 Rule 1(u) of CPC, which is akin to Regular Second Appeal under Section 100 of CPC and unless a substantial question of law is espoused, there would be no scope for interference. At outset, perusal of judgment and decree passed by