JUDGMENT : Ravi Malimatii, J. Plaintiff in O.S. No. 34 of 1997 filed a suit for specific performance against Shivappa and his mother Shivakka with regard to the suit property mentioned therein. Shivappa's sons, daughter and wife filed O.S. No. 100 of 1997 against Shivappa and Shivakka, who are defendants in O.S. No. 34 of 1997 and Kotrappa for partition and separate possession with regard to the suit properties mentioned therein. Both the suits were clubbed together. 2. O.S. No. 100 of 1997 namely, the suit for partition and separate possession was dismissed. Aggrieved by the same, the plaintiffs have filed the instant appeal. The parties are referred to as per their rank in the Trial Court in O.S. No. 100 of 1997. 3. Suit schedule property in O.S. No. 34 of 1997 is the first item of suit schedule property in O.S. No. 100 of 1997. The case of the plaintiffs is that plaintiffs 1 to 4 who are minors are under the care and custody of their mother Smt. Renuka-plaintiff 5. Father of the plaintiffs 1 to 4 and husband of plaintiff 5 is not protecting the interest of the minors. There is an adverse interest between the mother and father. Hence, suit by the minors and their mother as a next friend. Their case is that properties are the ancestral properties of plaintiffs and defendant 1. They were inherited by the father of defendant 1. Defendants 1 to 3 have effected partition in respect of all the joint family and ancestral properties in the year 1984. In the family partition, the suit properties have fallen to the share of defendant 1. In terms of the oral partition, entries have also been effected on the basis of a wardi given by defendants 1 to 3. Defendants 1 to 3 have accepted and acted upon the same. That after partition, defendant 2-Shivakka had lost all her right, title and interest over the suit schedule properties. That the suit properties belonged to the joint family of the plaintiffs and defendant 1. Defendants 1 to 3 colluding with one another got created false and fraudulent entries in the record of rights in respect of the suit lands in the 1985. Defendant 2 had no pre-existing right over the suit properties. Defendant 2 is not in possession of the suit lands since the date of partition. Defendants 1 to 3 colluding with one another got created false and fraudulent entries in the record of rights in respect of the suit lands in the 1985. Defendant 2 had no pre-existing right over the suit properties. Defendant 2 is not in possession of the suit lands since the date of partition. She is not put in possession of the suit lands in pursuance of alleged potagi patra and entries. That the entries and the deed of maintenance are got up and created documents. There is no income or revenue for the plaintiffs. The entries as potagidar (life interest holder) are illegal and unenforceable as against the plaintiffs and it is not binding on their shares. It is only during March 1997 that they came to know about the illegal entries. It is then that they have requested defendants 1 and 2 to effect division and allot their share, which was denied. Hence, they filed the instant suit for partition claiming l/6th share over the suit schedule properties for each of the plaintiffs and l/6th share to defendant 1. 4. On service of summons, the defendants entered appearance. 5. Defendant 4 namely the agreement holder of one of the suit schedule properties filed his written statement denying the plaint averments. He has pleaded that the suit is not maintainable since some of the plaintiffs have attained majority and guardianship is not discharged; that there are in all 4 properties which are ancestral properties. The partition that is sought for is with respect to only two properties and other two house properties have been left out. That the suit is fatal for not impleading the claimant Shanmukhappa who is said to be a tenant of the suit item 1(a) of the properties. It is further contended that defendants 1 and 2 have voluntarily executed an agreement of sale in favour of defendant 4 on 11-10-1994 for a sum of Rs. 75,000/-. Rs. 5,000/- was paid as earnest money and he was put in actual possession of the suit schedule property 1(a) namely land bearing R.S. No. 23/1 measuring 33 guntas. It was agreed that defendants 1 and 2 would execute the sale deed in favour of defendant 4 within three months upon receiving the remaining sale consideration of Rs. 70,000/-. The same was also reaffirmed by means of a letter dated 24-10-1996. It was agreed that defendants 1 and 2 would execute the sale deed in favour of defendant 4 within three months upon receiving the remaining sale consideration of Rs. 70,000/-. The same was also reaffirmed by means of a letter dated 24-10-1996. When the defendants did not execute the sale deed after issuing a notice, O.S. No. 34 of 1997 has been filed seeking specific performance of the agreement to sell. The suit was partly decreed. Aggrieved by the same, the defendants namely, the plaintiffs in O.S. No. 100 of 1997 filed Regular Appeal No. 42 of 2008 on the file of the Fast Track Court, Gadag, which was dismissed. Aggrieved by the concurrent findings, the defendants therein have filed Regular Second Appeal No. 100152 of 2014 which is pending before the learned Single Judge of this Court. Hence, it is pleaded that the suit be dismissed. 6. Based on the pleadings, the Trial Court framed the following issues: 1. Whether the plaintiffs prove that suit properties are ancestral properties of themselves and 1st defendant as pleaded in para 4 of written statement? 2. Whether the plaintiffs prove that the defendants 1 and 2 colluding with each other created an entry in other rights column as a right of maintenance in favour of 2nd defendant in 1985, with a view' of defeat rights of plaintiffs as pleaded in para 6 of W.S.? 3. Whether the plaintiffs prove that agreement of sale over suit properties executed by defendants 1 to 3 in favour of 4th defendant is not for the benefit of minors and the plaintiffs have preferential right of purchase share of coparcener under Section 22 of Hindu Succession Act, 1956? 4. Whether the plaintiffs prove that they are prepared to purchase suit property for the market value? 5. Whether the 4th defendant proves that 5th plaintiff is incompetent in represent plaintiffs 1 to 4 (minors)? 6. Whether the 4th defendant proves that as defendants 1 and 3 had not given any share to 2nd defendant voluntarily gave wardi and allotted suit properties for maintenance in favour of 2nd defendant vide ME No. 8350 as pleaded in para 5 of W.S.? 7. Whether the 4th defendant prove that this suit is not tenable as ME No. 8350 is not cancelled as pleaded in para 7 of W.S.? 8. 7. Whether the 4th defendant prove that this suit is not tenable as ME No. 8350 is not cancelled as pleaded in para 7 of W.S.? 8. Whether the 4th defendant prove that the 1st defendant is using plaintiffs as tool to grab the suit properties? 9. What is the effect of O.S. Nos. 57 and 34 of 1997? 10. Whether the 4th defendant proves that the defendants 1 and 2 have agreed to sell suit property 1(a) for Rs. 75,000/- received Rs. 5,000/- on 11-10-1994 and 2nd defendant ratified it on 24-10-1996 as pleaded in para 13 of W.S.? 11. Whether the suit is not maintainable for the reasons shown in paras 14 and 15 of W.S.? 12. Whether the suit is bad for non-joinder of Shanmukappa alias Mukappa as pleaded in para 16 of W.S.? 13. Whether the C.F. paid is insufficient? 14. What order/decree? 7. The plaintiffs let in the evidence of plaintiff 5 as D.W. 1 and the defendants let in evidence as P.Ws. 1 and 2 and documents were marked. Issues 1 to 4, 7, 12 and 13 were held in the negative and rest of the issues were held in the affirmative. 8. By the common judgment and decree, O.S. No. 100 of 1997 was dismissed. As mentioned earlier O.S. No. 34 of 1997 was partly decreed and at present is under adjudication before this Court in RSA No. 100052 of 2014. 9. Learned Counsel for the appellant-Sri R.K. Hatti, contends that the impugned judgment and decree of the Trial Court is erroneous and is liable to be set aside. The Trial Court failed to consider the material and evidence on record while dismissing the suit. That the issues framed by the Trial Court with regard to non-joinder of necessary party is erroneous. That there are no other agricultural properties than what is the subject-matter of the suit. The subject-matter of the suit is only two agricultural lands. Therefore, the finding that partial partition cannot he claimed is erroneous; that the Trial Court failed to consider the fact that the plaintiffs have not let in any evidence in order to show that the suit schedule properties are the agricultural properties and that defendants 1 and 2 have colluded with one another and have created a wrong entries. Hence, he pleads that the appeal be allowed and the suit be decreed. 10. Hence, he pleads that the appeal be allowed and the suit be decreed. 10. On the other hand, learned Counsel for the respondent-defendant 4 supports the impugned judgment and decree. He contends that the Trial Court has rightly passed the impugned order. That even if issue 11 was held in favour of the plaintiffs, that by itself would not entitle them for ay decree for partition. That the evidence and materials on record would show that the plaintiffs have failed to establish the case pleaded by them. Hence, he pleads that the appeal be dismissed by confirming the judgment and decree of the Trial Court. 11. In the light of rival contentions, following issue arises for our consideration: "Whether the finding recorded by the Trial Court are perverse and any interference is called for?" 12. Heard learned Counsels and examined the records. 13. So far as issue 11 namely the maintainability of the suit as contended in paras 14 and 15 of the written statement is concerned, the Trial Court held the same as partly in the affirmative. Averments in paras 14 and 15 of the written statement is to the effect that the plaintiffs' suit is fatal as some of the plaintiffs have attained majority and guardianship is not discharged; that since rest of the properties of the family had not been brought about for partition, such a suit is not maintainable. Adverting to the said contentions, the Trial Court held that even though guardianship is not discharged, plaintiff 5 continued to act as a next friend. Therefore, only because plaintiffs 1 and 2 did not appear before the Court after they attained majority, it cannot be said that the entire suit of the plaintiffs is fatal. Even otherwise, plaintiffs 3 and 4 as minors were represented by their mother-plaintiff 5. Therefore, on that ground alone, it cannot be said that the suit is fatal to the case of the plaintiffs. The contention of the defendants with regard to dismissal of the suit only on the ground that some of the plaintiffs had attained majority, was rightly negatived by the Trial Court since plaintiffs 3 and 4 continued to be minors and were represented by the plaintiff 5. Hence, no interference is called for with regard to the said contention. 14. The contention of the defendants with regard to dismissal of the suit only on the ground that some of the plaintiffs had attained majority, was rightly negatived by the Trial Court since plaintiffs 3 and 4 continued to be minors and were represented by the plaintiff 5. Hence, no interference is called for with regard to the said contention. 14. So far as not bringing the rest of the properties of the family is concerned, the Trial Court was of the view' that there are two properties which are ancestral properties and therefore those also should have been brought into the suit. Accordingly, the Trial Court has held that the defendant has proved that the suit for partial partition is not maintainable. The 4th defendant, who is a purchaser of the suit property though not a member of the joint family, has brought to the notice of the Court that there were two other properties belonging to the joint family properties. Under these circumstances, the Trial Court could have appropriately included those two properties also for partition. Suit could not have been held to be not maintainable only on the ground that two other properties were not included. Therefore, we are of the view' that while upholding the reasoning of the Trial Court on principle that the suit for partial partition is not maintainable, we are of the view that the Trial Court failed in its duty to include those two properties for partition. Even otherwise assuming that these properties were also the subject-matte- of the partition, the answer to such an issue would become irrelevant especially in view of the fact that the suit has not been dismissed merely on the finding at issue 11. The findings recorded by the Trial Court on the other issues run fatal to the case of the plaintiffs Which would be discussed herein later. Therefore, even if issue 11 with regard to guardianship of plaintiffs 1 and 2 and non-inclusion of two other properties in the suit for partition is held in favour of the plaintiffs, the same by itself would not lead to decreeing of the suit. 15. So far as other issues are concerned, the Trial Court has exhaustively considered the evidence and materials on record. 15. So far as other issues are concerned, the Trial Court has exhaustively considered the evidence and materials on record. It was of the view that there was no material let in by the plaintiffs nor had they produced evidence to show that defendant 1 had acquired suit schedule properties from his father's father. Therefore, it can be inferred that plaintiffs have failed to establish the fact that they are ancestral properties. No material was produced to show that defendant 1 succeeded to the properties. Plaintiffs have also failed to prove that the suit schedule properties are ancestral properties. Only which the plaintiffs are able to prove that the suit schedule properties are the ancestral properties, the claim for partition could be considered. The burden to establish the same is on the plaintiffs. They have not let in any cogent evidence to prove the said issue. The issue as to whether the plaintiffs prove that the suit schedule properties remained ancestral properties or not has been held in the negative. Considering the reasons as well as the evidence on record, we are of the view that the Trial Court was justified in holding the said issues against the plaintiffs. We find no error in the reasoning of the Trial Court in holding the same. Under the circumstances, answer to the other issues framed after holding that the suit schedule properties are not the ancestral properties were also considered by the Trial Court. The question as to whether the intending purchaser proved the agreement of sale, whether defendants 1 and 3 had not given any share to second defendant, all becomes consequential to the initial findings of the Trial Court with regard to the nature of the properties i.e., if they are ancestral or not. The finding recorded so far as issue 1 would have a strong bearing on the finding on the other issues. The Trial Court having rightly held that the plaintiffs have failed to prove that the suit schedule properties are ancestral properties, plaintiffs could not claim any share in the properties in question. Consequently, we are of the view that the judgment and decree of the Trial Court is just and appropriate as the findings recorded by the Trial Court are neither perverse nor improper and hence does not call for any interference. The issue is accordingly answered. Consequently, the appeal being devoid of merit is dismissed. Consequently, we are of the view that the judgment and decree of the Trial Court is just and appropriate as the findings recorded by the Trial Court are neither perverse nor improper and hence does not call for any interference. The issue is accordingly answered. Consequently, the appeal being devoid of merit is dismissed. No costs.