JUDGMENT D.V. Shylendra Kumar, J. This second appeal under Section 100 of Code of Civil Procedure is by the plaintiffs in OS No. 70 of 1986, on the file of Court of Munsiff at Karwar, who had sued the defendants for sharing suit schedule properties- three parcels of agricultural lands-on the premise that the suit schedule properties were joint family properties, but the suit though decreed by the trial Court in favour of the plaintiffs, having been reversed by the lower appellate Court in appeal in RA 17 of 1992, on the file of Civil Judge (Sr Dn), Karwar and the suit having been dismissed, are in this second appeal to get over the judgment and decree passed by the lower appellate Court. 2. The parties being related to one another through a common ancestor namely Rama, who, it was claimed, died about 25 years prior to the institution of suit and being the heirs of two sons of Rama, the first son being Mani @ Vithal, whose daughter is impleaded as first defendant, and second son Madaka, whose children -two sons and six daughters -having joined as planintiffs, is not a matter in dispute. The subject lands being one in respect of which Land Tribunal, Karwar having conferred occupancy rights in favour of one Smt. Sannu wife of Rama, who was the grandmother of the parties, in the year 1976 is also not in dispute. 3. While the case of the plaintiffs was that the first defendant was exclusively enjoying these lands particularly after ousting the plaintiffs, who are in common enjoyment of these properties, the case of the first defendant was that the lands in question were the family properties in possession of the branch of the family of Mani @ Vithal along with his mother Sannu; that there was a prior partition between the brothers and Sannu, who had lived with the elder son Vithal and having made an application on this behalf to the land tribunal after his demise in the year 1971, occupancy rights granted in favour of Sannu exclusively though in favour of the branch of Vitha’s family and it is for this reason the first defendant was exclusively enjoying the lands; that sale of one of the properties in favour of the second defendant therefore cannot be claimed by the plaintiffs, as the first defendant exclusively owned and enjoyed the suit lands. The defence of prior partition was the substantial defence put forth by the first defendant to deny share in the suit lands in favour of the plaintiffs. 4. In the alternative, it was pleaded on behalf of the first defendant that the plaintiffs had not approached the Court with correct facts; that the plaintiffs themselves who were in possession and cultivation of some agricultural lands which were originally part of joint family properties which had fallen to their share, which not only establishes the prior partition, but also rendering the present suit not maintainable for the reason that the plaintiffs did not sue for a share in all the family properties but only in respect of some of the properties in the possession and enjoyment of the first defendant; that the plaintiffs cannot seek for a partial partition excluding the properties which were in their possession and enjoyment and therefore the suit for partition was not tenable. 5. The second defendant, who is the purchaser of a piece of property from the first defendant, had filed separate written statement contending that he is a bonafide purchaser for a valuable consideration; that he had paid a sum of Rs.14,000/- as sale consideration and that too being purchaser in auction sale conducted by a co-operative society which had auctioned the property for realization of a loan borrowed by the first defendant; that the inter se squabbling between the plaintiff and the first defendant cannot affect the interest of second defendant and therefore while the suit should be dismissed, also pleaded that if for any reason it is found that the property is also a joint family property, the land purchased by this defendant should be allotted to the share of the first defendant so that the second defendant is not disturbed of his possession and enjoyment of the property which he had purchased. 6. In the light of such pleadings, the trial Court has framed the following issues and additional issues: 1. Whether the genealogy shown in the plaint is correct? 2. Whether the plaintiffs proves they with defendant constitute a joint Hindu family? 3. Whether they prove suit properties are of the joint family properties? 4. Whether the plaintiffs are entitled for a share in the suit properties? If so, what is the share of the parties to the suit? 5. Whether the genealogy shown in the plaint is correct? 2. Whether the plaintiffs proves they with defendant constitute a joint Hindu family? 3. Whether they prove suit properties are of the joint family properties? 4. Whether the plaintiffs are entitled for a share in the suit properties? If so, what is the share of the parties to the suit? 5. Whether the suit in the present form without relief of declaration is not maintainable? 6. Whether the suit is bad for partial partition? 7. Whether the plaintiffs are entitled for mesne profits? 8. What Decree or Order? Additional Issues 1. Whether the defendant 2 proves that he is the bonafide purchaser of the land, Sy. No. 77/1, measuring 6-14-0 gunthas for valid consideration without notice of suit, in a public auction? 2. Whether the defendant 2 proves that ‘Doctrine of lis pendense’ is not applicable to the case on hand as he has purchased the same in the public auction? 3. In the event of a decree, whether the land, Sy. No.77/1, can be allotted to the share of the defendant 1, under equity? 7. On the basis of such issues, the parties went to trial. On behalf of the plaintiffs, the first plaintiff got himself examined as PW1 and one Kashinath Laxman Naik, a resident of the village and a common acquiaintance of the parties was examined as PW2. Plaintiffs produced documentary evidence as per Exs.P1 to 26 mainly comprising revenue entries. On behalf of the defendants, the second defendant was examined as DW1, who was power of attorney holder of first defendant and also got marked documentary evidence Exs.D1 to 17. 8. It is relevant to mention here the genealogy of the parties, which is as under: Rama (died about 25 years ago) Sannu (died in 1979) Mani @ Vithal Madaka (died in 1985) Died on 19-2-1971 Satu (P-8) died -deleted Somi (died on 15-2-1976) Sukri (defendant) Ganapati Murali Idaki Piti Krishmi Kusham (plaintiffs 1 to 7) 9. 8. It is relevant to mention here the genealogy of the parties, which is as under: Rama (died about 25 years ago) Sannu (died in 1979) Mani @ Vithal Madaka (died in 1985) Died on 19-2-1971 Satu (P-8) died -deleted Somi (died on 15-2-1976) Sukri (defendant) Ganapati Murali Idaki Piti Krishmi Kusham (plaintiffs 1 to 7) 9. The learned Judge of the trial Court, on appreciation of the oral as well as documentary evidence, accepting the relationship of the parties as pleaded by the plaintiffs, concluded that the plaintiffs had proved that the they and the first defendant constitute a joint Hindu family; that the suit schedule properties are all joint family properties; that the plaintiffs are entitled to share in the suit schedule propeties and also held that the suit in the present form without seeking for the relief of declaration is maintainable and also held that the suit cannot be dismissed as bad on the premise that the plaintiffs were suing only for partial partition and accordingly decreed the suit, giving half share in the suit schedule propeties in favour of the plaintiffs and that it should be shared on equitable basis. 10. Aggrieved first defendant appealed to the lower appellate Court, contending that the conclusion arrived at by the trial Court was not tenable and the suit should have been dismissed; that the plaintiffs having not brought all the properties for being shared, the suit was not tenable, as being one for partial partition and therefore sought for allowing the appeal and dismissal of the suit. 11. The lower appellate Court on examination of such rival contentions, formulated the sole point as to whether the trial Court was justified in decreeing the suit of the plaintiffs? On appreciation of the materials on record, the learned Judge of the lower appellate Court has found fault with trial Court in answering issue No.6 in favour of the plaintiff, particularly for holding that notwithstanding the admission on the part of the plaintiffs that they were in possession of some family properties they are not co-owners of such lands as said lands having vested in the State cannot be partitioned; that the plaintiffs who are suing only in respect of a portion of the family properties for partition, reversed the finding on Issue No.6 being of the view that the suit being one for partial partition is not tenable. The lower appellate Court also found that the trial Court has overlooked the very admission made by the witnesses examined on behalf of the plaintiffs, particularly deposing that not all propeties were in the joint family cultivation and certain properties other than the lands which were made subject matter of the suit are left aside of tenated land, the parties were not in common enjoyment at any point of time and the further admission in respect of the suit schedule properties to the effect that they were exclusively in the name of father of first defendant and thereafter had been mutated in the name of his wife and daughter on an application filed by the father of the plaintiffs, wherein such admission was found could not have been ignored. The lower appellate Court also accepted that there was a prior partition, in the light of the statements said to have been given before the tahsildar at the time of mutating the revenue entries and showing the name of first defendant and her mother and father earlier based on the statement said to have been made by the earlier owner of the agricultural lands in question. 12. The learned Judge of the lower appellate Court gave credence to the fact that the very owner of the agricultural land sated before the revenue authorities the brothers had already shared the lands between themselves and were paying gutta or wara separately in respect of the lands in their possession, is a strong piece of evidence to accept the version of the first defendant about the prior partition in the family. In the result, the appeal was allowed and the judgment and decree passed by the trial Court was set aside and the suit was dismissed not only for the reason that the plaintiffs had failed to establish that the family continued to be joint family but also for the reason that even if the family was joint, the plaintiffs having not filed the suit for sharing all the joint family properties but by keeping aside some of the joint family properties for themselves, the suit for partial partition was not tenable and in neither view of the matter, the suit is liable to be dismissed. 13. It is aggrieved by this judgment and decree passed by the lower appellate Court, the plaintiffs have filed this second appeal. 14. 13. It is aggrieved by this judgment and decree passed by the lower appellate Court, the plaintiffs have filed this second appeal. 14. While admitting this appeal, this Court had formulated the following question of law as arising for determination in this second appeal: 1. Whether the finding of the lower appellate Court that the plaintiffs have no right, title and interest over the property calls for interference? 15. The question of law which has been framed necessarily involves only the conclusion of the lower appellate Court that the plaintiffs were not able to establish that the properties having been continued as joint family properties, in the sense, they were all properties of a family which had never divided and therefore were required to be shared amongst the plaintiffs as a well as the first defendant. In respect of other conclusion that a suit was not maintainable for the reason that the plaintiffs had not sought for share in all the family properties, in the sense, had not included such family properties, which were in their possession and enjoyment and therefore the suit being not tenable is not so much an issue under the question of law as framed by this Court. 16. Appearing on behalf of the appellants-plaintiffs, submission of Sri G. V. Kodandarama, learned Counsel, is that the lower appellate Court has committed a material error in law in concluding that there was evidence which the first defendant had placed before the Court to prove prior partition only on the basis of its finding that the plaintiffs had virtually admitted about the separate possession of the properties; that a finding of this nature, particularly for reversing the finding of the trial Court by re-appreciating evidence is perverse finding, inasmuch as the plaintiffs in the first instance had never admitted the partition in the family as set up by the first defendant and inference that a mere statement that some lands being enjoyed individually by members of the family can never amount to an admission with regard to prior partition and therefore submits that the learned Judge of the lower appellate Court has committed an error in recording a finding on such premise is an error committed by the learned Judge of the lower appellate Court. 17. 17. Learned Counsel for the appellants further submits that when there was no dispute either in terms of the pleadings or deposition on behalf of the first defendant that the subject matter suit lands initially were under the cultivation of the propositor Rama and thereafter by his sons-fathers of plaintiffs and the first defendant -and when an application was made by the widow of Rama on behalf of the family occupancy rights granted is in favour if the family and not in any individual capacity and therefore the learned Judge of the lower appellate Court has committed a grave error in law in concluding the that the plaintiffs have not established their right for claiming shares in respect of the suit lands, particularly by not proving that it is a joint family property. What is submitted is that when there was admission on the part of the defendant No.1 about the suit lands being in their possession as family properties earlier and occupancy rights conferred only in the year 1976, even the theory of prior partition does not take out the suit schedule properties from the requirement of being partitioned amongst the members of the family and therefore the lower appellate Court should not have reversed the judgment and decree of the trial Court for giving a share in favour of the plaintiffs in such properties. 18. Sri Kodandarama would rely upon the decision of our High Court in the case of Narayana Vs. A. Sadashiva (ILR 2000 Kar 487). Including that even if occupancy rights have been conferred in the name of any one of the members of a joint family that would enure to the benefit of the family and all the members of the family are entitled for a share in that property and therefore submits that assuming occupancy rights were granted in favour of Sannu, it is not for herself and through her to the branch of first defendant, but it has to be necessarily shared amongst all the members and not exclusively either to the benefit of said person or her son Vithal alone. It is, therefore, contended that the judgment and decree of the lower appellate Court cannot be sustained in concluding that the plaintiffs have no right, title or interest in respect of the suit schedule properties for claiming share in the properties as joint family properties. 19. It is, therefore, contended that the judgment and decree of the lower appellate Court cannot be sustained in concluding that the plaintiffs have no right, title or interest in respect of the suit schedule properties for claiming share in the properties as joint family properties. 19. On the other hand, Sri V. P. Kulkarni, learned Counsel for the respondent-first defendant vehemently urges that the question of law as framed by this Court does not constitute substantial question of law based on which the judgment and decree of the lower appellate Court can be upset; that the question as framed is only a lead to the question as to whether the finding recorded by the lower appellate Court particularly, regarding the existence of prior partition is a correct finding or otherwise and therefore submits that the finding of this nature is necessarily a finding of fact and even assuming that the lower appellate Court has not appreciated the evidence in proper perspective or in the correct manner in arriving at this finding, a finding of this nature cannot be reversed or interfered by High Court in exercise of jurisdiction under Section 100 CPC. 20. It is further submitted by learned Counsel for the respondents that as to whether there was a prior partition or not is a finding of fact though on the appreciation of evidence and interference is not warranted and relied upon the decision of the Supreme Court in the case of AFSAR SHAIKA Vs. SOLEMAN BIBI ( AIR 1976 SC 163 ) in support of his submission. SOLEMAN BIBI ( AIR 1976 SC 163 ) in support of his submission. The submission is that it was not as though the lower appellate Court has relied upon a mere admission on the part of plaintiffs witness with regard to the separate possession and enjoyment of the family properties which were not included for sharing, but also contents of ExD11-a statement given by the owner of the suit schedule properties before the shirestedar in the proceedings for change of name in the revenue records and the very owner having stated that the fathers of the plaintiffs and the first defendant were paying rent separately in respect portions of land was a very vital piece of evidence to infer the prior partition and therefore while there is nothing wrong at all if a finding as recorded by the lower appellate Court and in reversing the answer on the finding on issue No 6 as had been done by the trial Court, even otherwise the finding recorded by the lower appellate Court does not come within the scope of Section 100 CPC and therefore the appeal has to be necessarily dismissed. 21. While it is not a matter admitting of any dispute that the scope for interference in a second appeal is only if it involves a wrongly decided substantial question of law and a finding on fact even if had been wrongly recorded by Court below cannot be corrected by High Courts in second appeal, as to whether the finding is an error or a mistake or a finding arrived at on proper appreciation of evidence on record with regard to the findings of fact, are questions not of pure facts but questions of fact and law and many a times of law alone. Appreciation of evidence is definitely not a pure question of law, but a question of law arises in the manner in which evidence is recorded or if is an improper appreciation of evidence, it is question of law calling for interference even in second appeal, as has been repeatedly held by the Supreme Court itself. 22. Even in the light of the provisions of Section 103 CPC, which reads as under: 103. Power of High Court to determine issue. 22. Even in the light of the provisions of Section 103 CPC, which reads as under: 103. Power of High Court to determine issue. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal, (a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100. High Courts, on the available evidence can definitely correct a finding wrongly recorded by the Trail Court on the Lower Appellate Court on issues that had arisen and which has been wrongly determined by the Courts below. 23. In so far as the finding recorded by the lower appellate Court regarding the plaintiffs making out a case for partition on the premise that it is joint family properties is concerned, the trial Court while answering issues 2,3 and 4, particularly issue No 3, has gone by the pleadings and supportive evidence of the plaintiffs having probabalised this case, while the first defendant having not produced supportive evidence in support of her defence, particularly by not examining any person conversant with the developments in the family, as it is only the second defendant who has deposed by way of power of attorney even for the first defendant. 24. The defence of the first defendant that the property was self-acquired property of her father and therefore the plaintiffs cannot claim any share having failed miserably, particularly as genealogy was found to be susceptible, the fact that the very properties were got through an order passed by the land tribunal and made in favour of Sannu-wife of propositor Rama -the properties being impressed with the status of joint family properties could not be countered by defendant and therefore the suit was to be decreed and as against such evidence and conclusion, the lower appellate Court having reversed this conclusion on this issue, only on the premise that the deposition of PW1 has indicated that some of the properties were being cultivated separately even during their father’s time, which is an admission of partition for denying a share, in my opinion, is not a conclusion that is supportive in law. 25. 25. A statement by a witness that some properties of the family were being used or enjoyed separately in itself is not an admission of a partition of the properties in the family. A convenient arrangement of enjoying the properties is not patition in law. The fact that the parties were enjoying properties according to their convenience is also established from the evidence of the parties themselves, as it is the undisputed case of parties that while the family house was in the possession and enjoyment of the first defendant, another house constructed by the father of the plaintiffs was in their enjoyment, but they never formed subject matter to any partition in the family and therefore the theory of prior partition is highly improper rather cannot be accepted. The conclusion of the lower appellate Court with regard to the failure plaintiffs to establish that the family was joint and all the suit schedule properties form of joint family properties is not supportive in law, particularly, in the light of the evidence that was before the Court and the trial Court had rightly concluded that the properties form part of the joint family to be shared amongst the plaintiffs and the first defendant. 26. However, this still leaves an impediment for the plaintiffs to seek of a decree for partition of suit schedule properties alone, as the lower appellate court did find that the plaintiffs had not sued for patition of all the family properties, but only some of the properties were made subject matter of the suit. In this regard, though the trial Court had answered issue No 6 with regard to maintainability of the suit in favour of the plantiffs, I find that the lower appellate Court has rightly reversed this finding on issue No 6, as it had found that the properties which were in the possession and enjoyment of the plaintiffs were admittedly properties which they got into possession as tenated properties through their ancestors, but the plaintiffs had put up defence that they were not included in the family properties for the reason that they did not get ownership of the properties. This is not a tenable stand or tenable explanation for the simple reason that the very logic can apply to many of the suit lands sought for partition, which were also tenated lands and the land tribunal had conferred only occupancy rights in respect of these lands in favour of Sannu and therefore the suit being merely for partition of some of the properties of family was not maintainable on the conclusion of the lower appellate Court. 27. Though Sri Kodandarama, learned Counsel for the appellants -plaintiffs has submitted that the predecessors of the plaintiffs assuming were in possession of the properties as members of the family, having not got title and as tenated property that having vested in the State, was not a property which can be claimed as family property available for sharing, and in this regard the trial Court has rightly answered this issue and the lower appellate Court could not have reversed this finding on this issue, I find that the conclusion of the lower appellate Court on this aspect is very correct for the reason that when once the plaintiffs themselves had admitted the possessory rights enjoyed by them in respect of agricultural lands which they had kept apart from being shared was part of the family lands and the family had been utilizing and enjoying the lands as tenated lands, irrespective of the fact that they did not get occupancy rights, and therefore should be kept out of sharing is not an argument that can be accepted, as when once it was construed that these lands are properties of the family and are liable to be shared amongst all members and possessory right assuming that there is no title to the properties as of now is also a valuable property right and the asset of the joint family, cannot be kept apart exclusively for the plaintiffs themselves and seeking for sharing in respect of the other properties i.e., suit schedule properties. If the plaintiffs are seeking for a share and the correct share in the properties of the family, it is not open to them to set apart some properties by giving technical reasons or explanations. Such explanations are not acceptable in law. If enjoyment is a mere possessory enjoyment that too can be shared and there is no impediment for sharing such possessory properties either. Such explanations are not acceptable in law. If enjoyment is a mere possessory enjoyment that too can be shared and there is no impediment for sharing such possessory properties either. It is for this reason I hold that the lower appellate Court was justified in nevertheless dismissing the suit as not tenable, as the plaintiffs having not claimed for partition of all the joint family properties. 28. In the result, though the question as framed by this Court while admitting this appeal is answered in favour of the present appellants and to that extent though the plaintiffs -appellants succeed, the suit fails for the reason that it is only a suit for partial partition and was not tenable in law and not for the reason that the plaintiffs have no right or entitlement that they share in the family properties. It is open to the plaintiffs to workout their right for claiming proper share independently, and without prejudice to that possibility, the suit has to be dismissed. The second appeal though succeeds on the question of law as framed by this Court, the suit of the plaintiffs failing for other reason, cannot result in decreeing the suit in favour of the plaintiffs and therefore technically the appeal is dismissed with the observation as above, with liberty to plaintiffs to file a fresh suit claiming their due share in all the joint family properties.