JUDGMENT : 1. The plaintiff in OS.No.172/2005 on the file of Civil Judge (Sr.Dn), Sira, has come up in this appeal impugning the concurrent findings of both the courts below in dismissing the suit of plaintiff. 2. Brief facts leading to this second appeal are as under: The plaintiff in original suit, Hanumakka claims herself to be the wife of late Kariyanna, who is undisputedly the younger brother of sole defendant–M. Narasappa. It is the case of plaintiff that she was married to Kariyanna and in the wedlock they have a child by name K. Puttamma. She would state that around 2 years after the death of Kariyanna she filed the suit for partition seeking undivided share of her husband in the suit schedule properties. 3. In the said suit, the defendant on service of summons entered appearance and filed written statement contending that his brother Kariyanna was mentally unsound, physically incapable of marrying, be in marital life and could not have had any children in the wedlock. According to the defendant, his brother never married anybody in his life including the plaintiff; there were no issues to him; all along his brother was under his care and custody; his brother was living most of the time in Bangalore and sometimes in his sister’s house also. It is further stated by the defendant that his father had 4 children viz., 2 sons and 2 daughters; all are married except Kariyanna, his younger brother; the suit schedule properties though are the ancestral properties of his grand father, same are available for partition between his father Narasimhaiah and his paternal uncle Hanumappa, who had 50% share in the said properties; there was an arrangement with reference to division of the properties between his father and his father’s brother Hanumappa and as such, the properties which had fallen to the share of his paternal uncle Hanumappa are being cultivated and managed by his paternal aunt Chikkamma; the remaining portion is under his cultivation and enjoyment and that at no point of time anybody else had any share. It is also defendant’s case that during the lifetime of Kariyanna, he was in possession of the suit schedule properties for himself and also for the benefit of his brother Kariyanna. Subsequent to his death, all the properties are available with him and he is enjoying the same. 4. It is also defendant’s case that during the lifetime of Kariyanna, he was in possession of the suit schedule properties for himself and also for the benefit of his brother Kariyanna. Subsequent to his death, all the properties are available with him and he is enjoying the same. 4. In the said proceedings, based on the draft issues which were filed by the parties to the suit, issues were framed and parties were called upon to adduce evidence. The plaintiff in support of her case examined herself as PW.1. She had also examined 3 other witness and produced and marked in all 18 documents as Exs.P1 to P18 in support of her case. Out of that Exs.P1 to P11 are the revenue records with reference to suit schedule properties; Ex.P12 is the genealogical tree, which she got prepared from the office of Village Accountant, Kaalapura Circle, Mayasandra village, Shira Taluk; Ex.P13 is the Voters’ list, which was admittedly prepared in the year 1998 after the death of Kariyanna showing her as the wife of deceased Kariyanna; Exs.P14 and P15 are the SSLC Marks Card and Transfer Certificate of her daughter–Puttamma, where the name of her daughter is shown as the daughter of Kariyanna; again Exs.P16 to P17 are the RTC extracts. Among the witnesses, who adduced evidence on behalf of plaintiff as stated supra, plaintiff is PW.1. PW.2 is one Anjanappa, a distant relative. PW.3 is Puttanarasamma, sister of PW.1 and PW.4 is none other than her daughter Puttamma’s husband, Rajanna. 5. Per contra, on behalf of the defendant, the paternal aunt of defendant, namely Chikkamma adduced evidence as DW.1 and the two residents of same village, namely Doddakatanayaka and Lakshmamma were examined as DWs.2 and 3. The only document which was produced and marked in support of defendant’s defence is Special Power of Attorney executed by the defendant in favour of DW.1Chikkamma. 6. The court below on appreciation of the pleadings, oral and documentary evidence available on record proceeded to answer issue Nos.1 to 3, which are with reference to whether the suit schedule properties are the joint family properties, whether plaintiff proves refusal of partition and separate possession by defendant and whether the plaintiff proves that she is entitled to partition and alleged half share in all suit schedule properties, in the negative. The 4th issue viz., whether description of the suit schedule properties is correct or otherwise, is held to be not necessary for consideration. The 5th issue with reference to plaintiff’s entitlement to the relief as sought, is also answered in the negative. Consequently, the suit of the plaintiff is dismissed. 7. Being aggrieved by the judgment and decree passed by the trial court, the plaintiff preferred an appeal in RA.No.124/2006 on the file of II Additional District Court, Tumkur, wherein the lower appellate court on re-appreciation of the pleadings, oral and documentary evidence available on record in the light of finding on issue Nos.1 to 5 and also the grounds urged in the lower appellate court proceeded to frame only one point for consideration viz., whether the judgment and decree impugned is opposed to law, facts and probabilities of the case and answered the same in the negative. Consequently, dismissed the appeal filed by the plaintiff. Against which this second appeal is filed by the plaintiff. 8. When this second appeal was heard for admission on 14.8.2017, this Court admitted the same to consider the following substantial questions of law: (1) Whether the trial court and the lower appellate court have rightly appreciated the pleadings and evidence available on record with reference to the relationship of plaintiff with defendant through his brother? (2)Whether both the courts below were justified in rejecting the prayer of plaintiff for the relief of partition? Thereafter, this matter is taken up for final hearing since the lower court records were already received. 9. Heard the learned counsel appearing for the parties. Perused the judgments of both the courts below with reference to the pleadings, evidence and also the grounds urged in the appeal memorandum. On considering the same in the light of substantial questions of law as above, this court would answer the same in the affirmative for the following reasons; When the judgments of both the courts below are appreciated with reference to the grounds of appeal and the substantial questions of law, it is seen that while filing the suit for partition itself the plaintiff has admitted that her husband was of unsound mind. However, she did not state since when he was of unsound mind ie., whether prior to marriage or subsequent thereto and there is nothing on record to substantiate the same either in the pleadings or in the evidence. However, she did not state since when he was of unsound mind ie., whether prior to marriage or subsequent thereto and there is nothing on record to substantiate the same either in the pleadings or in the evidence. In fact, in the pleadings an attempt was made by the plaintiff to demonstrate that the joint family of plaintiff’s husband and defendant were residents of Sira Taluk in Tumkur District, where the suit schedule properties as well as the joint family house were located in Mayasandra village of Kallambella Hobli. Whereas the address in the cause title to the plaint would indicate that plaintiff is resident of Sajjehosahally, Dodderi Hobli, Madhugiri Taluk, which is far away from Kallambella Hobli, where the suit schedule properties are located. 10. Further, in the pleadings there is no reference to the age of plaintiff as on the date of her marriage, the age of her husband, the date of marriage, where the matrimonial house was set up and how long they lived together. When the entire pleadings, evidence of not only the plaintiff but the other witnesses are seen, there is total inconsistency in every single averment of the plaint. Wherein though the plaintiff would state that she is a permanent resident of Madhugiri Taluk till few years before filing of the suit, when she shifted her residence to Sajjehosahally where her daughter is residing along with her husband is not stated. However, the evidence on record would speak otherwise. 11. When the documents at Exs.P14 and 15 which are the SSLC Marks Card and Transfer Certificate of the plaintiff’s daughter are looked in to, they would indicate that the child never studied in any school other than the school which was situated at Khadavanahalli of Madhugiri Taluk, which is at a distant place from Sira Taluk thereby indicating that the plaintiff and her daughter never lived in Mayasandra village of Sira Taluk. When the evidence of PW.1 is looked in to it is in consonance with the pleadings. However when the evidence of PW.3, the sister of plaintiff is looked in to, it is seen that there is an admission in her cross-examination regarding the defence which are raised by the sole defendant in his written statement. When the evidence of PW.1 is looked in to it is in consonance with the pleadings. However when the evidence of PW.3, the sister of plaintiff is looked in to, it is seen that there is an admission in her cross-examination regarding the defence which are raised by the sole defendant in his written statement. Wherein PW.3 would admit that Kariyanna was not having good health, he was not in a position to lead marital life, he was a man of unsound mind, he was living for long time either in Bangalore or in his sister’s house and he never lived in Mayasandra village as stated by the plaintiff in the plaint as well as in her evidence. 12. In fact, the evidence of PW.3 is supported by DWs.1 to 3, who have adduced evidence to demonstrate that at no point of time Kariyanna and plaintiff lived in Mayasandra village in the family house. The evidence on record would also disclose that the family house in Mayasandra is in a dilapidated condition and it was not in a position to be the house of their residence. Per contra, there is an attempt to demonstrate that a house was set up in Mayasandra village where the plaintiff and her husband lived along with their daughter, which is not supported by the evidence of any of the witnesses. In addition to that, it is clearly observed by both the courts below that when the suit is for partition and when admittedly Puttamma, the plaintiff’s daughter is also one of the sharers to the properties of her alleged father Kariyanna, why she is not made as a party, is not explained. Further, there is nothing on record to show why said Puttamma was not brought on record to adduce evidence in support of the case of her mother for the relief of partition to demonstrate that Puttamma knew about her mother’s marriage with Kariyanna and that they lived together. 13. Further, there is nothing on record to show why said Puttamma was not brought on record to adduce evidence in support of the case of her mother for the relief of partition to demonstrate that Puttamma knew about her mother’s marriage with Kariyanna and that they lived together. 13. On the contrary, PW.1 goes to the extent of adducing evidence through Puttamma’s husband–Rajanna, who is PW.4 in the court below to demonstrate that even before his marriage with Puttamma he was residing in Mayasandra village at Sira Taluk in the house of Kariyanna and plaintiff–Hanumakka for few years and that he has seen his father-in-law Kariyanna cultivating the land by himself along with his elder brother–Narasappa, the sole defendant in the court below. It is seen, except this PW.4 nobody else in the court below have adduced evidence in that behalf viz., Kariyanna cultivating the land by himself along with his brother Narasappa, the defendant. Hence, the evidence of PW.4–Rajanna is contrary to the evidence adduced by PWs.1 to 3 and DWs.1 to 3, who would state in clear terms that Narasappa never came to his village for cultivation. The only averment which is made by the plaintiff in the suit and the evidence of other witnesses is that Narasappa–defendant was managing the properties being the elder son of his father, but nowhere it is stated by any of them that he was cultivating the lands personally. 14. Further, as could be seen from the evidence of plaintiff, PW.3 and DW.1, Kariyanna was never in a position to cultivate the land at any point of time. All that was said by the said witnesses is that Kariyanna was in joint possession of the suit schedule properties as one of the coparceners of the joint family of his father–Narasimhaiah consisting of himself and his brother Hanumappa and the children of Narasimhaiah, namely the defendant– Narasappa and the alleged husband of plaintiff–Kariyanna. When that being the case, there is improvement in the evidence adduced on behalf of the plaintiff by PW.4 to demonstrate as if Kariyanna was independently capable of cultivating the land when evidence per contra would demonstrate that he was not physically fit and not mentally sound to carryout any such work. 15. The entire evidence on record would not indicate that at any point of time Kariyanna, the alleged husband of plaintiff lived continuously in Mayasandra village. 15. The entire evidence on record would not indicate that at any point of time Kariyanna, the alleged husband of plaintiff lived continuously in Mayasandra village. Though it is suggested that he had visited that place now and then, it is demonstrated that he had spent most of the time in his brother’s house at Bangalore or in his sister’s house. In fact, the death of Kariyanna had also taken place in the house of his sister Smt. Obalanarasamma. It is also stated that neither the plaintiff nor her daughter have participated in the obsequies of Kariyanna. In fact to improve upon the defence raised by the defendant in the original suit, when a question is posed by the plaintiff’s counsel to DW.1 that the marriage of plaintiff with Kariyanna was celebrated by DW.1, defendant and the 2 sisters of defendant, namely Obalanarasamma and Chikkanarasamma, the same is stoutly denied by DW.1 thereby putting an end to all speculations by the plaintiff. 16. In this background, when the appreciation of evidence on issue Nos.1 to 6 by the trial court and on the sole point which was framed for consideration by the lower appellate court is looked in to, it is seen that both the courts below have properly appreciated and re-appreciated the pleadings and evidence on record and consequently, the suit of the plaintiff is dismissed by the trial court and same is confirmed by the lower appellate court. In fact, in the lower appellate court when there was an attempt to demonstrate that issues are not properly framed with reference to the parties establishing the relationship of plaintiff with Kariyanna, the lower appellate court has rightly considered said argument on the ground that when the draft issues were called upon to be filed by the parties in the original suit, the plaintiff herself did not choose to frame such an issue. Therefore, it is not open to her to argue on that point in the lower appellate court. It is further observed that while filing the appeal before the lower appellate court non framing of necessary issue was not even a ground and it is only at the time of final arguments an effort is made which is rightly considered by the lower appellate court while re-appreciating the evidence and pleadings. 17. It is further observed that while filing the appeal before the lower appellate court non framing of necessary issue was not even a ground and it is only at the time of final arguments an effort is made which is rightly considered by the lower appellate court while re-appreciating the evidence and pleadings. 17. In that view of the matter, this court feel that the judgments rendered by both the courts below in holding that plaintiff Hanumakka failed to demonstrate her marital status with Kariyanna and the parental status of Kariyanna to her daughter Puttamma, are just and proper. Consequently, dismissal of the suit of plaintiff by the trial court and confirmed by the lower appellate court cannot be interfered with in this second appeal. 18. The learned counsel for the appellant/plaintiff in support of his case regarding the relationship between plaintiff–Hanumakka and Kariyanna as husband and wife tried to rely upon the judgment in Lakshmamma–vs– Kamalamma & Anr., reported in ILR 2000 KAR 3837, wherein it is held that if a man and woman professing to be husband and wife, cohabited for a long length of time and if the society has recognized their relationship, a presumption would arise that they are legally wedded wife and husband. However, the said decision would not apply to the facts of the case on hand as in the present case the appellant/plaintiff has not made out a case that herself and Kariyanna lived as husband and wife for a long length of time and that they were recognized as such by adducing evidence through independent witnesses. 19. Therefore, in the aforesaid circumstances, this court has no other go but to answer the substantial questions of law framed in this appeal in the affirmative against the appellant in confirming the judgments of both the courts below. Accordingly, this second appeal is dismissed.