JUDGMENT : 1. The present appeal is filed by the mother of the plaintiff and his brother. His mother is said to have died during the pendency of this appeal and she has died leaving behind a Will, which is now produced before the court. The plaintiff had filed a suit seeking a declaration of one-eighth share out of the suit schedule ‘A’ to ‘F’ properties, which according to them belong to his father Dodda Sharanappa and directing Defendant No.1, his mother and Defendant No.2, his younger brother to hand over separate possession of his share and for incidental reliefs. 2. The genealogy of the family is as under : GENEALOGY Dodda Sharanappa Died on 13.01.2007 = Hampamma Deft.1=Appt.1 (Died during the pendency of the appeal) Chanagouda Plff=R.1 Rajendra Prasad D.2=A.2 Daxayani D.4=R.3 Vishalaxmi D.5=R4 Narendranath Dt.3=R.2 (Died during 2014) (Died during pendency of appeal) Vijaylaxmi Dead Shakuntala Dead Basavaraj D.6=R.5 =Mahipal D.7=R.6 3. It is the case of the plaintiff that Defendants 1 to 3 are the residents of Bellary. Defendant No.4 is a resident of Chitapur, Gulbarga District. Defendant No.5 is a resident of Bangalore. Defendant No.6 is a resident of Yardihal, Lingasugur Taluk, Raichur District. Defendant No.7 is a resident of Dharwad. The father of the plaintiffs is said to have died intestate as on 13.01.2007 leaving behind the plaintiff and the defendants. The plaintiff’s father Dodda Sharanappa and his uncle Sanna Sharanappa and his grandfather Veeran Gouda are said to have divided their ancestral and joint family properties under a partition deed dated 13.06.1967. At the said partition, Dodda Sharanappa the father of the plaintiff is said to have been granted ‘A’ schedule properties and the residential plots were again divided between Dodda Sharanappa, his wife Hampamma, and his four daughters namely Vijaylaxmi Devi, Drakshayini Devi, Shakuntala Devi and Vishalaxshi and his three sons namely the plaintiff and his brothers Narendranath and Rajendra Prasad, as on 30.03.1974. The agricultural lands were divided between Dodda Sharanappa and his three sons under a memorandum of partition dated 19.10.1976. Similarly, there was yet another memorandum of partition in respect of agricultural lands on 8.12.1986. The agricultural lands were divided between Dodda Sharanappa and his three sons under a memorandum of partition dated 19.10.1976. Similarly, there was yet another memorandum of partition in respect of agricultural lands on 8.12.1986. It is clear that the plaintiff’s father had sold 19 sites formed out of agricultural lands and had retained the sale proceeds thereof apart from which the properties allotted to Vijayalakshmi, the deceased daughter and S. Dakshayani Devi - the Defendant No.4 in Sy.No.24-B/9 measuring 25 cents and another property of vacant site of Sy.No.350/21/D-1 which was jointly allotted to the plaintiff, his mother and two brothers was also liable for partition. The plaintiff’s father is said to have divided the properties amongst himself, the plaintiff and defendants as already stated, in the year 1986 under a memorandum of partition and since then, plaintiff and defendants 2 to 7 were enjoying their respective shares. The suit properties which had fallen to the share of Dodda Sharanappa were being enjoyed in their allotted shares. During the partition of the year 1986, the father of the plaintiff had not chosen to divide the gold and jewellery belonging to the joint family and had retained the same with him and till his death, the gold and jewellery had remained in the custody of the father of the plaintiff. And he had also retained a sum of Rs.60 lakh which he had received as sale consideration of the sites sold in Bellary City as already stated. The father of the plaintiff is said to have died intestate and thereafter, it is Defendant Nos.1 and 2 who had taken over the management and the affairs of the properties left behind by the plaintiff’s father. And they were receiving more than Rs.5,00,000/-per annum out of the said properties. When he insisted the Defendants 1 and 2 to give him his legitimate share in the properties which had been retained by the father of the plaintiff without being partitioned, there was reluctance and indefinite postponement of the proposal. It is the plaintiff’s case that Defendant No.2 was deliberately misleading the mother of Defendant No.1 and was trying to persuade her to dispose of the properties to his exclusive benefit. It is the plaintiff’s case that Defendant No.2 was deliberately misleading the mother of Defendant No.1 and was trying to persuade her to dispose of the properties to his exclusive benefit. It is also the allegation of the plaintiff that Defendant No.1 was able to withdraw certain amounts deposited in Banks by submitting false petitions before courts of law and was also trying to dispose of certain immovable properties situated in the heart of Bellary city and to defraud the plaintiff and others in the family who were also entitled to a legitimate share. It is also claimed that there is a vacant site in Sy.No.24-B/9 situated at Parvathi Nagar which is described in Schedule ‘D’ and a vacant site in Sy.No.350/21/D-1 at Veerangouda Colony, opposite to Kumaraswamy Temple, Bellary, which are in the heart of Bellary city. 4. The late father of the plaintiff had spent his days with Defendant No.2. Defendant No.1 also continued to reside with him. Therefore, he was taking advantage of this proximity in being able to manipulate documents and seeking to dispose of property to the disadvantage of others. And Defendant No.2 even isolated Defendant No.1 and was not allowing her to meet the other members of the family, to further his evil designs. He had also threatened the plaintiff not to pursue his demand for any share and there was even a police complaint in this regard. There were attempts at re-conciliation through well-wishers of the family, which had failed. And since there was no alternative left, the suit was filed. 5. The total value of the properties is valued at Rs.3.38 crore and the plaintiff’s case at one-eighth share is valued at Rs.42.31 lakh and hence the suit. 6. Defendant No.1 has filed a written statement to deny the plaint averments and to state that she and her husband were residing separately and even after the demise of her husband, she was separately residing and maintaining whatever properties left behind by her husband and that land bearing Sy.No.118E measuring 4.78 acres was not standing in the name of her husband as alleged in the plaint. In fact, only 1.36 acres in and out of Sy.No.118E/1 of Sanganakal was standing in the name of her husband. In fact, only 1.36 acres in and out of Sy.No.118E/1 of Sanganakal was standing in the name of her husband. Even the land measuring 1.36 acres was not in the possession and enjoyment of Defendant No.1 and it is occupied by the trespassers of the Scheduled Caste and Scheduled Tribe communities. And that the land bearing Sy.No.191 measuring 21.57 acres stood in the name of her husband. However, the plaintiff and his son who were holding lands adjacent to the same had encroached that land to the extent of almost 10 acres and had unauthorisedly cultivated the land and she being his mother, had not raised any objection and had not chosen to take any action. It is admitted that land bearing Sy.No.185 measuring 7 acre 5 crents was standing in the name of her husband and after his demise, it was in her possession and enjoyment. The land bearing Sy.No.118B/2 measuring 2 acres 2 cents of Sanganakal did not belong to her husband and similarly, land bearing Sy.No.18M/1 measuring 1 acre of Sanganakal also did not belong to her husband, whereas it stood in the name of Smt. Shankaramma, W/o. Shri M. Keshava Reddy. 7. The land bearing Sy.No.165/2 measuring 2 acres 55 cents of Sanganakal did not also belong to her husband and it belonged to the State Government for the purposes of a High Level Canal. The land in Sy.No.166 numbered as 166A measuring 84 cents of Sanganakal also did not belong to her husband and it belonged to one Indu Shekar, S/o. late S. Sanna Sharanappa, Advocate, Bellary, who was the cousin of the plaintiff. The land bearing Sy.No.174 measuring 22 cents stood in the name of the husband of the first defendant and it was in the possession of the plaintiff. The land bearing Sy.No.189 measuring 1 acre 29 cents of Sanganakal stood in the name of her husband and was in her possession. It is also stated that Plaint ‘B’ Schedule properties bearing Sy.No.199C measuring 1 acre 12 cents, Sy.No.194 measuring 8 acres 25 cents and Sy.No.198 measuring 5 acres of Ubbalagandi village were the self-acquired properties of Defendant No.1 herself and she had purchased the same under two registered sale deeds dated 25.11.1963 and therefore, the plaintiff and Defendants 2 to 7 did not have any independent right over the plaint ‘B’ schedule properties. 8. 8. It is also stated that plaint ‘C’ is with reference to mining lease land bearing M.L.No.686 and 687 measuring 81 acres 80 cents of Jayasinghpur village in Ramdurg Range, Hospet Taluk and was surrendered to the Government during the lifetime of the husband of the first defendant. Hence, that land was not available for partition and could not be treated as his ancestral property. 9. Insofar as Item No.(a) of the plaint ‘D’ schedule which is an open space measuring 6,308.75 sq.ft. situated in Sharanappa Compound on the main road, Parvati Nagar, Bellary, was gifted by the husband of Defendant No.1 to Defendant No.2 under a registered Gift Deed dated 20.10.2003. Hence, Item No.(a) of plaint ‘D’ schedule house property and its adjacent vacant site was in the possession and enjoyment of Defendant No.2 and therefore, there was no right to seek partition of the same. 10. Item No.(b) of the plaint ‘D’ schedule which is 20 cents of land bearing Sy.No.24B/6 was the separate property of Defendant No.1 wherein she had sold 5 acre 5 cents to one Umapathi towards legal necessities more than 10 years prior to the suit and the plaintiff had no right to question her rights in respect of Item No.(b) of the plaint ‘D’ schedule properties. 11. It is further denied that the plaintiff had sought for his share in these properties and that it had been denied by the her and her son Rajendra Prasad. It was also denied that there was any such income of Rs.5 lakh per annum out of the properties owned and left behind by her husband. 12. Defendant No.2 has also filed a written statement independently to deny the plaint averments and claim that the plaintiff had earlier carried on business in the name of “Vijaya Trading Concerns”, Car Street, Bellary for sale of cigarette products of the Indian Tobacco Company. The plaintiff was the eldest son of his father and he was looking after the business. Defendant No.2 has also filed a written statement independently to deny the plaint averments and claim that the plaintiff had earlier carried on business in the name of “Vijaya Trading Concerns”, Car Street, Bellary for sale of cigarette products of the Indian Tobacco Company. The plaintiff was the eldest son of his father and he was looking after the business. He had manipulated the records of the business and had falsified the records and therefore had amassed monies which rightfully should have come to the family and therefore, the company ultimately sustained heavy losses and the banker who had advanced loans had sought recoveries on account of defaults in repayment of the loans and had filed a suit in O.S.No.191/1977, and it is the father of the plaintiff and defendants 2 to 7 who had discharged the loan to the tune of about Rs.2 lakh as well as court costs and interest which was all on account of the plaintiff having incurred such liability. It is further claimed that the plaintiff had left the family after his marriage, within four months from the date of his marriage in the year 1976, at which time a partition was entered into and reduced into writing, as on 19.10.1976 and he had received 5 kg of gold, 25 kg of silver and Rs.5 lakh cash from his father and this had been informed to him by his parents as claimed by Defendant No.2. At the time of leaving the house, the younger sisters were yet to be married as well as his brother Narendranath and they were unaware of the affairs of the family, particularly the business aspect and the parting of wealth. It is thereafter that their father had performed their marriages and had also incurred huge amounts in conducting other family affairs, and had to borrow to meet such liabilities. The plaintiff was always the nuisance to the family and made unreasonable demands and had caused much pain and suffering to his parents over a period of time. There was even a police case on account of this kind of behaviour on the part of the plaintiff and it is only after the plaintiff was strictly warned by the police not to cause harassment to his parents, that he had refrained from doing so. 13. There was even a police case on account of this kind of behaviour on the part of the plaintiff and it is only after the plaintiff was strictly warned by the police not to cause harassment to his parents, that he had refrained from doing so. 13. Though the partition had been effected in the year 1976, the plaintiff had filed a suit in the year 1981 in O.S.No.31/1981 on the file of the Civil Judge, Bellary, seeking partition. When once the partition was effected the suit for partition did not survive and was accordingly dismissed for default and non-prosecution. Therefore, the plaintiff was precluded from filing a fresh suit on the same cause of action. The plaintiff had mentioned and claimed in the said suit about the partition deed dated 19.10.1976. However, has now chosen to take a new stand about the partition deed dated 8.12.1986. In view of these admitted circumstances, the plaintiff has no case. 14. It is also pointed out that the suit schedule properties are all not family properties and some of them are self-acquired properties of his father as well as his mother and that the plaintiff could not lay claim to the same. Further, once there was a partition whereby his father had got a share in the property and he was free to alienate the same in any manner and therefore, the plaintiff seeking to lay claim over the father’s share of the property is also not tenable and further, the plaintiff has mischievously included the properties which did not belong to the family properties and also some properties of the Government. After their father’s death, Defendant No.1, the mother of Defendant No.2 is said to have moved an application before the Tahsildar, Bellary, to change the khata in her favour and therefore, he could not raise any objection to the same which was a legitimate exercise. The plaintiff however had given an application in the year 2007 mentioning the name of the second defendant and his brother Narendranath as if they were also signatories to the application, but no such signatures had been obtained from the second defendant or his brother and the plaintiff himself had forged their signatures and that the defendant was ready to take criminal action against the plaintiff, as he had committed this mischievous and illegal act. However, the plaintiff had chosen to turn the tables to him by filing a false complaint and that indicated the malafides on the part of the plaintiff. 15. It is also claimed that the properties shown in Schedule ‘A’ do not all belong to the family and in Schedule ‘B’ land bearing Sy.No.199/C does not belong to the family and the remaining lands in ‘B’ schedule were the self-acquired properties of their mother. And Schedule ‘C’ property is mining land and belongs to the State. Schedule ‘D’ property belongs to the second defendant and was acquired under a Gift Deed over which the plaintiff could not lay claim. The cash and jewellery claimed in Schedule ‘E’, the defendant No.2 claims that he is unaware of the same. Insofar as Schedule ‘F’ is concerned, it belongs to his parents and that the plaintiff could not lay claim to it. 16. On the basis of these pleadings, the court below had framed the following issues and so-called additional issues : “ISSUES 1. Whether the plaintiff proves that suit schedule ‘A’ to ‘F’ properties are the joint family properties of the plaintiff and the defendants? 2. Whether the plaintiff proves that he has got 1/8th share in the suit ‘A’ to ‘F’ schedule property? 3. Whether the plaintiff proves that the defendant No.2 is illegally trying to dispose off the properties owned by deceased S. Dodda Sharanappa? 4. Whether the plaintiff proves that the defendant No.2 is getting more than rs.5,00,000/-per year out of the properties owned by late S. Dodda sharanappa and plaintiff is also entitled to get mesne profits out of it? 5. Whether the plaintiff is entitled for the relief of declaration as sought? 6. Whether the plaintiff is entitled for the mesne profits as prayed? 7. What decree or order? ADDITIONAL ISSUES 1. Whether plaintiff further proves that Sri. Dodda Sharanappa and his younger brother Sri. Sanna Sharanappa and their father Sri. S.B. Veeranagouda have got divided their ancestral and joint family properties under a partition deed dated 13.06.1967 in which Sri. D. Dodda Sharanappa, his wife, four daughters and three sons on 30.03.1974? 2. Whether the plaintiff further proves that Sri. S. Dodda Sharanappa and his three sons were divided the joint family landed properties through the partition deed 19.10.1976 and 08.12.1986? 3. D. Dodda Sharanappa, his wife, four daughters and three sons on 30.03.1974? 2. Whether the plaintiff further proves that Sri. S. Dodda Sharanappa and his three sons were divided the joint family landed properties through the partition deed 19.10.1976 and 08.12.1986? 3. Whether the plaintiff further proves that Smt. S. Vijayalakshmi Devi and Smt. S. Dakshayanidevi in T.S.No.24-B/9 measuring 25 cents and another property bearing TS No.350/21/D1 was jointly allotted to the plaintiff, his mother and two brothers?” 17. As seen from the above pleadings, there was serious dispute about several of the properties described under the various schedules to the suit as being joint family properties. In answering Issue No.1, it was required of the Trial Court to address the specific denial of certain items of property as belonging to the joint family. In this regard, Paragraphs 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 of the written statement of Defendant No.1 are averments which specifically refer to particular items of property and either deny that they belong to the joint family property, or has explained as to the extent or otherwise which actually belong to the family and it did not belong to the family. This is not addressed by the Trial court. Similarly, Defendant No.2 in his written statement has also raised similar pleas with reference to particular items of the suit property apart from raising other objections which are also required to be considered. 18. Though issue No.1 would require the court to specifically address these aspects, it has been completely ignored. The reasonings and findings on Issue Nos.1 and 2 which are dealt with together, is sketchy and cryptic. There is no reasoning assigned. There is no specific reference to the items of the suit property and there is no discussion with reference to the documents that are produced in arriving at a conclusion that Suit Schedule ‘A’ to ‘F’ properties belong to the family. This is a sorry state of affairs. 19. Therefore, Issue No.1 which requires a detailed discussion and reasoning as to each item of property which is denied as belonging to the joint family or it is claimed to be self-acquired property of a particular defendant or deceased father of the plaintiff and his brothers, was required to be addressed in detail. This exercise has not been carried out. 20. This exercise has not been carried out. 20. The other issues would only follow the findings that are arrived at in Issue No.1. In the absence of any reasoning or other consideration of the pleadings of the parties which are specific with reference to particular items of property, the entire judgment would therefore fall into error if the court has proceeded on the presumption or on the premise that all the properties at Schedule ‘A’ to ‘F’ belong to the family. The glaring circumstance that there are several items which are shown to be Government land also having been taken as joint family property, is indeed shocking and inexplicable, which discloses want of diligence and circumspection on the part of the Trial court in having proceeded in this fashion. Therefore, Issue No.1 which is an omnibus issue requiring the plaintiff to demonstrate that the properties belong to the joint family, and in the absence of any evidence in that regard, if the defendants are in a position to demonstrate the same, it would be necessary for the court below to permit the parties to adduce additional evidence in this regard to specifically address the pleadings that are pointed out hereinabove and thereafter arrive at its conclusion on other issues which would follow the findings arrived at in addressing Issue No.1. 21. Incidentally, Defendant No.1 who is the mother of the plaintiff and defendants 2 to 7, has died during the pendency of this appeal. She has left behind a Will in respect of the properties that were standing in her name, or had fallen to her share as she had succeeded to the share on the death of her husband and therefore, this aspect as to whether the bequest made under a Will and the effect it would have on the suit properties and the shares that would have to be re-distributed, would also have to be considered by the Trial court. Therefore, in this regard, additional evidence of the parties may be warranted apart from a further issue being framed as regards the share that would fall to Defendant No.1 as her exclusive property or which has come to her by way of inheritance from her husband who had died intestate. These primary aspects require to be re-considered by the Trial Court. Accordingly, there is no warrant to frame any fresh issue. These primary aspects require to be re-considered by the Trial Court. Accordingly, there is no warrant to frame any fresh issue. Issue No.1 is an omnibus issue which would require a detailed consideration as aforesaid and the same is left untouched. 22. There are other incidental matters which require further consideration by the Trial Court and the Trial Court is free at its discretion to frame such other issues as may be necessary, as for instance, the plaintiff having filed an earlier suit which was a suit for partition in the year 1981 which had been dismissed. and whether he would be estopped from filing any further suit such as the present one, in the light of the same. Secondly, the Record of rights pertaining to some of the suit properties had not been produced. The effect of Section 132 of the Karnataka Land Revenue Act, 1964 on the non-production of such Record of Rights may also be kept in view. 23. In the result, the judgment and decree of the Trial court is set aside. The matter is remanded for a fresh consideration in terms as above. The parties shall be given liberty to tender additional evidence, in the light of the observations made hereinabove. 24. The records shall be remitted to the Trial Court, forthwith. The Registry is also directed to return the original Will filed by Appellant No.2, to be filed before the Trial court.