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2012 DIGILAW 336 (KAR)

Chennappa Moolya v. Seju Moolya

2012-04-10

B.V.Pinto, N.K.Patil

body2012
JUDGMENT N.K. Patil, J: This appeal is filed by the 6th defendant being aggrieved by the impugned Judgment and Decree dated 6.2.2007 passed in O.S.No.119/2003 on the file of II Addl. Civil Judge (Sr.Dn) at Mangalore, wherein, the suit filed by respondents No.1 to 3/plaintiffs No.1 to 3 for partition in respect of suit schedule properties, has been decreed. 2. It is the case of Respondents No.1 to 3 herein that, appellant and Respondents No.4 to 9 are the members of the undivided Hindu Family and are the successors of common ancestor Late Somanna Moolya and Mrs. Appu Hengsu, who is the wife of Late Somanna Moolya. Somanna Moolya and Appu Hengsu had six children namely Devu Moolya, deceased, is now succeeded by his wife and children, Respondents No.4 to 8. Seju Moolya-Respondent No. 1.; Chennappa Moolya-Appellant; Sanjeevi Respondent No.9; Anand-Respondent No.2 and Lakshmi- Respondent No.3 and they are the legal heirs of the deceased Somanna Moolya and Appu Hengsu. 3. It is the further case of Respondents No.1 to 3 that the suit schedule property included the Joint Family Property and other properties, which belonged to children of Somanna Moolya i.e., appellant-Chennappa Moolya, who is none other than 6th defendant anti first defendant Late Devu Moolya. On tenancy right they have obtained the said lands all tenancy and they were cultivating the schedule properties as agricultural tenants. On coming into force of Karnataka Land Reforms Act, Devu Moolya and his brother Chennappa Moolya have jointly filed declaration in Form 7 claiming occupancy right. The Land Tribunal, Mangalore after conducting an enquiry, passed an order on 25.10.1977 in LRT No.2-1440/76-77 and LRT.No.559/1974-75 granted occupancy rights. 4. It is the ease of Respondents No.1 to 3 that the occupancy rights was granted jointly in the name of all the legal representatives of deceased Somanna Moolya and they have got their share in the suit schedule property and it is not the exclusive rights of the appellant, and deceased defendant No. 1. Therefore, the appellant contended that Respondents No. 1, 4 to 8 gave rights in Plaint Schedule Properties and Respondents No.3 to 7 issued notice dated 13.10.2002 calling upon the appellant and Respondents No.4 to 8 to divide the properties. Subsequently, Respondents No.1 to 3 herein filed O.S. No. 119/2003 on the file of II Addl. Civil Judge (Sr.Dn) at. Mangalore, praying for a decree of Partition and Separate Possession. 5. Subsequently, Respondents No.1 to 3 herein filed O.S. No. 119/2003 on the file of II Addl. Civil Judge (Sr.Dn) at. Mangalore, praying for a decree of Partition and Separate Possession. 5. Upon registration of the said case filed by Respondents No.1 to 3 in O.S.No.119/2003, the appellant herein contested by filing written statement contending that respondents No.1 to 3 have no rights whatsoever to claim partition in respect of the suit schedule properties in question, as it was granted by the Land Tribunal exclusively in individual capacity viz., in the names of Late Devu Moolya and the appellant himself. However, he admitted that only Sy.No.51/16 to an extent of 45 cents and Sy.No.51/23 to an extent of 25 cents, where the RTC stands in the joint name of Somanna Moolya, Chennappa Moolya and Devu Moolya and the respondents No.1 to 3 claim 1/6th share in the 1/3 share of Somanna Moolya and the appellant is entitled for 1/3rd share in the above properties. Insofar as Sy.No.51/2A measuring 50 cents is concerned, a residential building existed and the said property may be considered as the property of Somanna Moolya wherein the plaintiffs/Respondents No.1 to 3 are also entitled for 1/6th share if the Respondents No.1 to 3 establishes their joint cultivation before the Tribunal in respect of the above Survey numbers. Except the above four survey numbers all other survey numbers namely Sy.Nos.28/11, 44/3, 44/6, 51/6, 51/15, 51/16, 51/23 and 57/6 are exclusively tenanted property of the appellant, and Late Devu Moolya. The Court below has ignored the Judgment of this Court, wherein it is clarified that the tenancy issue should he decided and determined only by the Land Tribunal and they are competent to give finding regarding tenancy. Therefore, the Civil Court has no jurisdiction to give finding regarding the issue of tenancy. Further, the case of the appellant is that, the Court below has given more importance to the vague statement of 75 years aged person and presuming the joint family status in respect, of one property will give right to all other properties and came to a wrong conclusion that all the plaint schedule properties are liable for partition even though the order of the Land Tribunal was not challenged by Respondents No.1 to 3. The Court below without proper application of mind and ignoring the admitted documents at Ex.P8 has proceeded to decree the suit as prayed for by Respondents No.1 to 3. Therefore, the appellant has presented this appeal praying that the impugned Judgment and Decree passed by the Court below is liable to be set aside and the suit filed by Respondents No. 1 to 3 is liable to be dismissed as devoid of merits. 6. Respondents No.1 to 3 to substantiate their case, examined plaintiff No.1 as PW. 1 and marked documents as per Exs.P1 to P10, whereas appellant examined himself as DW. 1 and another two witnesses DW.2 and DW.3 and no documents as such have been marked and closed the evidence of both the sides. 7. On the basis of the pleadings available on record, defendants No.1 to 5 & 7 filed a memo stating that they adopt the written statement filed by 6th defendant/appellant herein and closed their evidence. 8. On the basis of the above pleadings, the trial Court has framed the following issues: 1. Whether the plaintiffs prove that plaint schedule properties belonged to Somanna Moolya on tenancy right and Item No.14 of plaint schedule properties belonged to Appu Hengsu on tenancy right? 2. Whether the 6 defendant proved that plaint schedule property is the self acquired property of late Devu Moolya and himself? 3. Whether the plaintiffs prove that themselves and defendants having equal rights on the plaint schedule properties? 4. Whether the 6th defendant proves that plaint schedule properties were partitioned between himself and L.Rs. of Devu Moolya? 5. Whether the 6th defendant proves that plaint schedule property is not a partiable property? 6. Whether the plaintiffs prove that they are entitled to mesne profits as prayed for? 7. Whether the plaintiffs proves that they are entitled to reliefs as prayed for? 8. What order to decree? 9. After evaluation of the oral and documentary evidence and other relevant materials available on the file, taking into consideration the contents of Ex.P3-Certified Copy of Form No.7 filed by the deceased Devu Moolya and the entries found in the Record of Rights as per Ex.P1 with reference to Exs.P1 to P4, the certified copy of the sketch prepared by the Surveyor and the order passed by the Land Tribunal at Ex.P8, the Court below answered issue Nos. 1, 3 & 7 in the affirmative; issue Nos.2, 4 and 5 in the negative and issue No.6 FDP proceedings and issue No.8 as per the final order and decreed the suit filed by Respondents No. 1 to 3 holding that they are entitled for 1/6th share each in the plaint schedule properties and regarding mesne profits, separate enquiry is ordered to he held in FDP proceedings. Not satisfied by the impugned Judgment and Decree passed by the Court below, the appellant felt, necessitated to file the instant appeal. 10. The submission of the learned Counsel appearing for the appellant at the outset is that the Court below has committed a grave error and material irregularity and illegality in decreeing the suit as prayed for without considering the grounds and the contentions urged by the appellant and failed to prove the necessary issues based upon the pleadings of the parties in as much as the plaintiff ought to lave proved the Joint Family right and title in respect of the plaint schedule properties and further no proper issue has been framed as per the contention of the appellant and the defendants regarding the grant of occupancy rights by the Land Tribunal which has got the jurisdiction to decide the tenancy issue and suit is not maintainable. Taking some admission in the cross- examination of the appellant that he is aged more than 75 years and an illiterate, ignorant person, does not have the legal knowledge, has accepted the same. The said admission is vague in nature. As a matter of fact, the appellant has in unequivocal terms stated that respondents No. 1 to 3 and other respondents are entitled to their share in Sy.No.51/2A measuring 50 cents and further the Court below has failed to take into consideration that Respondents No.1 to 3 are born and subsequently residing in Bantwal Taluk as on the date of coming into force of the Karnataka Land Reforms Act on 1.3.1974 and only the appellant and Late Devu Moolya were cultivating the land as individual tenants and hence entitled for confirmation of occupancy right. Therefore, he submitted that the impugned Judgment and Decree passed by the Court below is liable to be set aside. 11. All the respondents are served and unrepresented except. Respondent No. 1. Therefore, he submitted that the impugned Judgment and Decree passed by the Court below is liable to be set aside. 11. All the respondents are served and unrepresented except. Respondent No. 1. Learned Counsel appearing for Respondent No. 1 substantiates stating that the impugned Judgment and Decree passed by the Court below is well founded and well reasoned and is passed after due appreciation of the oral and documentary evidence available on the record and after considering the admission made by the appellant in his cross-examination that all the respondents and the appellant are born and brought up from the same place. Originally, the deceased father and mother were cultivating the land in question as a tenant since more than 80 years and this fact has been categorically stated In form No.7 by the deceased Devu Moolya in the relevant column of Form No.7 that they are cultivating the land since 80 years and further he specifically pointed out the admission, made by the appellant in his cross examination that they are, all living together and further he categorically stated that the fir8t respondent, who is none other than his brother is residing in the said landed property belonging to his wife and is cultivating the land jointly and residing separately since more than 45 years and further he has stated that he has got registered Partnership Deed but he has not produced the same. 12. The trial Court has rightly taken note of the categorical admission made by the appellant in his cross-examination and did not dispute that the schedule land in question was tenanted lands, cultivated by the father and mother of the appellant and respondents herein and the same has been succeeded by all the legal representatives of the deceased viz., six children [4 sons and two daughters]. This fact has been rightly accepted, appreciated and recorded a finding of fact in paragraphs 15, 17 and 19 of the Judgment, which read as follows: "15. The contention of the 6th defendant and L.Rs. of defendants No.1 to 5 cannot be accepted for the reason that the document Ex.P3 clearly shows that the property is in cultivation for more than 80 years and at the time of filing declaration Devu Moolya was 48 years and Devu Moolya also gave statement before the Land Tribunal stating that himself and Chennappa Moolya cultivating the property jointly. of defendants No.1 to 5 cannot be accepted for the reason that the document Ex.P3 clearly shows that the property is in cultivation for more than 80 years and at the time of filing declaration Devu Moolya was 48 years and Devu Moolya also gave statement before the Land Tribunal stating that himself and Chennappa Moolya cultivating the property jointly. On perusal of the said document shows that……………………. The word ….. has been striken off and and Form No.7 is not signed by Channappa Moolya. Ex.P4 to Ex.P6 are certified sketch of the Land Tribunal prepared by the Surveyor. On perusal of Ex.P8 the order passed by the Land Tribunal shows that property has been granted in favour of Devu Moolya and Chennappa Moolya with respect of the property bearing S.No.51-61-60 acres, 51-16 51 cents, 42-11 40 cents, 28-11 40 cents, 51-23 61 cents, 46-6 80 cents, 51-5 31 cents, 54-2 50 cents, 54-19 30 cents and Devu Moolya and Chennappa Moolya were declared as tenant in respect of said property by the Land Tribunal. On perusal of the said document also shows that Devu Moolya gave statement stating that he is cultivating the property from so many years. Admittedly Somanna Moolya died before the Land Reforms Act came into force. It is also clear from the evidence of D.W.1 that after the death of Somanna Moolya they are all residing in joint family. P.W. 1 specifically stated during his cross-examination that he born in chalageni property and all his brothers and sisters born in the chalegeni property and also stated that he is not aware as to when his father obtained the chalageni property. The said admissions clearly shows that Chennappa Moolya was in possession of the property as chalageni tenant and cultivating the same. The said fact is supported by documentary evidence. 17. The 6th defendant also failed to prove that plaint schedule property are the self acquired property of late Devu Moolya and himself and also failed to prove that the suit schedule property is partitioned between himself and Devu Moolya, as no document is produced to prove the partition between themselves. In the absence of documentary evidence the contention of the 6th defendant that the plaint schedule property was partitioned between himself and LRs of Devu Moolya cannot be accepted and 6th defendant also failed to prove that the plaint schedule property is not partiable property. In the absence of documentary evidence the contention of the 6th defendant that the plaint schedule property was partitioned between himself and LRs of Devu Moolya cannot be accepted and 6th defendant also failed to prove that the plaint schedule property is not partiable property. As it is clear from the document, declaration filed by Devu Moolya that they are in possession of the properties more than 80 years and admittedly the properties are chalageni properties which is also admitted by DW1 during his cross-examination. On perusal of RTC copies with respect S.No. 51/23, 46/6, 44/3, 44/6, 51/2A, 51/6 and 28/11 column No. 11 of the said document clearly shows that they are the chalageni properties. The evidence of PW1 is supported by the documentary evidence and plaintiffs case is also supported by the evidence of DW1. By considering the oral and documentary evidence I answer issue No.1 partly affirmative. Issue Nos.2 and 5 in the negative. 19. The 6th defendant has also contended that plaint schedule property was partitioned between himself and LRs of Devu Moolya. But no document is produced by the defendant to show that there was a partition between 6th defendant and LRs of Devu Moolya. On perusal of cross-examination of PW1 there was no suggestion put to the witness that the properties have been divided between 6th defendant and LRs of Devu Moolya. DW1 also stated that the defendants 1 to 5 and himself divided the property with respect of the properties allotted to their shares from 4 to 5 years. But no document is produced by the DW 1 to show that there was partition between themselves and property standing in their name and no RTC copy is produced to prove that the property property is allotted to their shares. Admittedly D.W.1 stated that they partitioned the property under the registered partition deed. But the partition deed is not produced, by the 6th defendant. In the absence of documentary evidence, the contention of the 6th defendant that they have partitioned the property cannot be accepted. Hence I answer issue No.4 in the negative." 13. In the absence of credible documentary and oral evidence, there is a contention of the appellant that they have partitioned the properties which is rightly not accepted by the trial Court and rightly held that admittedly there was no partition in their family. Hence I answer issue No.4 in the negative." 13. In the absence of credible documentary and oral evidence, there is a contention of the appellant that they have partitioned the properties which is rightly not accepted by the trial Court and rightly held that admittedly there was no partition in their family. Therefore, it is clear that Respondents No.1 to 3 are entitled for 1/6th share each in the plaint schedule properties and Respondents No.4 to 8 are together entitled for 1/6th share and other respondents-the parties to the proceedings are also entitled for their 1/6th share. Therefore, the contention of the appellant and LRs of defendants No.1 to 5 cannot be accepted for the reason that the document Ex.P3 clearly shows that the property is in cultivation for more than 80 years and at the time of filing declaration Devu Moolya was 48 years, who gave statement before the Land Tribunal stating that himself and Chennappa Moolya are cultivating the property jointly. In Form No.7 it is specifically stated that:………………………... The word ………. has been struck off and Form No.7 is not signed by the appellant herein. This shows beyond reasonable doubt that, the appellant in order to claim exclusive right over the suit schedule property, which has not been rightly accepted by the trial Court and recorded a finding of fact holding that the suit schedule property is a tenanted land and all the legal representatives of father and mother have equal share i.e., 1/6th share in the suit schedule properties. Therefore, interference by this Court does not call for. 14. After careful consideration of the submission of the learned Counsel appearing for both the parties, after perusal of the impugned Judgment and Decree passed by the Court below and also after perusal of the entire records available on file, what emerges is that, the appellant has examined himself as DW. 1 and stated that the suit schedule property is not available for partition and gone to the extent of saying that it is the self acquired property of the appellant and the deceased 1st defendant and plaintiff No. 1 has left the property as early as in the year 1960 and settled down at Bantwal and the properties are held under Geni right by Late Devu Moolya and filed declaration in Form No.7 claiming occupancy rights before the Land Tribunal. The Land Tribunal in LRT proceedings dated 25.10.1977 passed in LRT No.2-1440/76-77 and LRT No.559/1974-75, rightly granted occupancy patta in favour of appellant and Late Devu Moolya and they became the absolute owners of plaint schedule property. The grant of, occupancy right is for and on behalf of all the family members. Devu Moolya and Chennappa Moolya were cultivating the schedule properties for and on behalf of the entire family of Somanna Moolya and Appu Hengsu. The tenancy right inherited by all the children of said Somanna Moolya and Appu Hengsu was therefore enured to the benefit of the legal representatives. The filing of declaration, cultivating the land, granting of occupancy right etc., were all for and on behalf of the family. Hence the plaintiffs and defendants have equal rights in the plaint schedule properties. The plaintiffs further stated that the defendants No.1 to 6 are enjoying the plaint schedule properties without the plaintiffs' share. When the plaintiffs approached the defendants and made a request to divide the properties by metes and bounds, the defendants had initially agreed but later they went on postponing the same. The defendants are attempting to alienate the property in favour of Mangalore Urban Development Authority for formation of house sites and thereafter are trying to receive the entire amounts to be payable by MUDA and deny the legitimate entitlement of compensation. Therefore, he prayed that the suit filed by Respondents No. 1 to 3 is liable to be dismissed with exemplary costs. 15. The evidence of the appellant herein that Respondents No.1 to 3 and the appellant and other respondents are the members of Hindu undivided family and they are the successors of common ancestor Late Somanna Moolya. Mrs. Appu Hengsu is the wife of late Somanna Moolya and Somanna Moolya and Appu Hengsu had six children namely., Devu Moolya deceased now succeeded by his wife and children, Respondents No.4 to 8, Seju Moolya Respondent No.1: Chennappa Moolya-Appellant; Sanjeevi Respondent No.9; Anand-Respondent No.2 and Lakshmi Respondent No.3 are the legal heirs of the deceased Somanna Moolya and Appu Hengsu. The land in question belonged to Somanna Moolya on tenancy right and he had obtained the said lands on tenancy and he was cultivating the schedule properties as agricultural tenant. Item No.14 of plaint schedule property belonged to Appu Hengsu on tenancy right. Both Somanna Moolya and Appu Hengsu have expired intestate. The land in question belonged to Somanna Moolya on tenancy right and he had obtained the said lands on tenancy and he was cultivating the schedule properties as agricultural tenant. Item No.14 of plaint schedule property belonged to Appu Hengsu on tenancy right. Both Somanna Moolya and Appu Hengsu have expired intestate. The tenancy right in the schedule properties therefore was inherited by the plaintiffs and defendants who are all the successors of Somanna Moolya. On coming into force of Karnataka Land Reforms Act, Devu Moolya husband of defendant No.1 and father of defendants No.2 to 5 had filed declaration in Form 7 claiming occupancy right and in the declaration form itself, he had clearly stated that the tenancy is very old and the same has come down from the ancestors. The Land Tribunal, Mangalore after conducting enquiry passed an order dated 25.10.1977 in LRT No. 2-1440/76-77 and LRT No. 559/1974-75 and granted occupancy right in favour of Devu Moolya and Chennappa Moolya jointly in respect of plaint schedule property for and on behalf of all the family members. Devu Moolya and Chennappa Moolya were cultivating the schedule properties for and on behalf of the entire family of Somanna Moolya and Appu Hengsu. The tenancy right inherited by all the children of said Somanna Moolya and Appu Hengsu therefore enured to the benefit of the legal representatives. The filing of declaration, cultivation of land, granting of occupancy rights etc., were all for and on behalf of the family. Hence, the plaintiffs and defendants have equal rights in the plaint schedule properties. The plaintiffs further stated that the defendants No.1 to 6 are enjoying the plaint schedule properties without the plaintiffs' share. When the plaintiffs approached the defendants and made a request to divide the properties by metes and bounds the defendants had initially agreed but later went on postponing the same. The defendants attempted to alienate the property in favour of Mangalore Urban Development Authority for formation of house sites and thereafter received the entire amounts payable by the MUDA to them. Hence, the plaintiffs issued notice dated 13.10.2002 calling upon the defendants to divide the properties. The defendants attempted to alienate the property in favour of Mangalore Urban Development Authority for formation of house sites and thereafter received the entire amounts payable by the MUDA to them. Hence, the plaintiffs issued notice dated 13.10.2002 calling upon the defendants to divide the properties. The deceased Somanna Moolya had 6 children, out of the same Devu Moolya is no more and he is succeeded by defendants 1 to 5 and therefore the plaint schedule property is liable to be divided into 6 equal shares and plaintiff each is entitled for 1/6th share. The defendants No.1 to 5 being the legal representatives of deceased Devu Moolya are entitled for 1/6th share and all other defendants are entitled for 1/6th share each. Further, the appellant has failed to elicit any worthwhile information from the cross-examination of Respondent No.1. Whereas the appellant, has categorically admitted in the cross examination that altogether in the land in question they are all born and brought up under the supervision of the parents and they have cultivated the land, in question jointly in the land held by the first respondent belonging to his wife. The first plaintiff is the permanent resident of Kallige Village in Bantwal Taluk and has been cultivating the land in Kallige village since 40 years. This admission made by the appellant in his cross-examination has been rightly appreciated, accepted and considered by the Court below. Further, DW.3-K.M.Ameen has stated in unequivocal terms that he knows the appellant, respondents No. 1 to 3 and other respondents since 40 years. The land in question is a tenanted land since the time of their father and mother and they are cultivating the said land and the appellant and the deceased Devu Moolya both are working in a Tile Factory and further he has stated in unequivocal terms that respondents No. 1 to 3, appellant, and other respondents are living together jointly. DW.3 is examined none other than by the appellant himself. In the cross-examination, the admission made as referred above goes against the stand of the appellant and the same is beneficial to respondents No. 1 to 3. 16. DW.3 is examined none other than by the appellant himself. In the cross-examination, the admission made as referred above goes against the stand of the appellant and the same is beneficial to respondents No. 1 to 3. 16. Further, the trial Court after appreciation of the documentary evidence at Ex.P1-RTC copies (18 Nos): Ex.P2- Certified copy of Form No. 10; EX.P3-Certified copy of Form No.7; Exs.P4 to P6-Certified copies of Sketch; Ex.P7-Not marked; Ex.P8-Certified copy of Land Tribunal order; Ex.P9-Lawyer Notice copy and Ex.P10-Reply Notice, has held that the stand of the appellant and the legal representatives of the deceased defendant Nos. 1 to 5, cannot be accepted and the documents clearly show that the property in question is cultivated from more than 80 years and it will not derive any title to the parties. It is also clear that at the time of filing Form No.7 Devu Moolya was aged 48 years and in cultivation column it shows that cultivation is from 80 years. The deceased Devu Moolya also gave a statement before the Land Tribunal stating that himself and Devu Moolya are cultivating the property jointly. 17. On perusal of the said document-Form No.7, it is specifically stated that:…………………….. The word ……. has been struck off and Form No.7 is not signed by the appellant herein. 18. After meticulous evaluation of the records available on the file what emerges is that. Ex.P3-Certified copy of Form No.7 has been filed in English manuscript, whereas, the declaration which has filed under Rule 19(1) of the Land Acquisition Rules under Section 48 A(1) for Registering as an Occupant under Section 45 of the Land Acquisition Act, both column particulars should be given instead of that Devu Moolya alone has filed Form No.7 and there is a Kannada manuscript written, which reads thus: In this, has been struck off. It. shows that there malafide intention of the appellant to go to the extent of depriving the legitimate entitlement of respondents No.1 to 3 and other parties entitled to their respective shares. 19. Admittedly. D.W.1 has stated that they have partitioned the property under registered Partnership Deed, but he has not produced the partnership deed. In the absence of the documentary evidence, the contentions of the appellant that they have partitioned the property, cannot be accepted, as rightly held by the trial Court. 20. 19. Admittedly. D.W.1 has stated that they have partitioned the property under registered Partnership Deed, but he has not produced the partnership deed. In the absence of the documentary evidence, the contentions of the appellant that they have partitioned the property, cannot be accepted, as rightly held by the trial Court. 20. The trial Court after considering the oral and documentary evidence and other relevant materials available on the file, taking into consideration the relationship between respondents No.1 to 3, appellant and other Respondents, who are none other than the brothers and sisters, who succeeded to the properties from their father and mother has observed that originally. Late Somanna Moolya was cultivating schedule lands out of its survey number cultivated by his mother. After the death of mother and father, all the children have succeeded to the suit schedule property and it is a tenancy land. Devu Moolya being a elder son and Kartha of the family has filed Form No.7 for registration of occupancy rights and also admitted during his lifetime, to give equal share to all the brothers and sisters but after death of Devu Moolya, the appellant has managed himself and also persuaded Respondents No.4 to 8 that Respondents No. 1 to 3 are not entitled to any share and they adopted the stand taken by the appellant in his written statement. 21. The Court below considering the oral and documentary evidence and other relevant materials available on the file, has rightly dismissed the suit by assigning valid reasons and decreed the suit granting 1/6th share in respect of the suit schedule properties. The same is just and proper and we do not find any error, arbitrariness or material irregularity and illegality as such committed in view of the well founded and well considered judgment passed by the Trial Court. Hence, we decline to grant the relief sought for in this appeal. Accordingly, appeal is dismissed.