JUDGMENT : K. SOMASHEKAR, J. 1. This appeal has been filed by the defendant No.8 against the judgment and decree passed by the learned Senior Civil Judge, Saundatti, in O.S. No.40 of 2010 dated 23.11.2013. 2. Heard learned counsels. 3. The factual matrix of the appeal are as under: It is the case of the plaintiff that the suit properties bearing CTS No.3070 measuring 47.29 Sq. Mtrs., CTS No.3076 measuring 60.57 Sq. Mtrs. and CTS No.3077 measuring 66.57 Sq. Mtrs. All CTS numbers bear TMC No. 1517 and 1517/A respectively. The house property and open site measuring 30 x .22 sq. ft. and 40 x 30 sq. ft. situated at Bevinakatti Oni, Saundatti and another property bearing TMC No.2138/44 /2 measuring 30/45. All the properties are situated at Saundatti. The property bearing TMC No.2138/44/2 belonging to the plaintiffs family standing in the name of Mahadevappa, who is the father of plaintiff and later on defendant No. 1 has got transferred the property in her name without the knowledge of the plaintiff and she had transferred the said property to one Smt. Mahadevi W/o Mallikarjun Gudiyavar and the said Mahadevi has transferred the same to one Kutabuddin S/o Fakrusab Nippani, which came to the knowledge of the plaintiff after obtaining the property extract on 20.08.2010. According to the plaintiff, at present, the properties i.e., CTS Nos.3070, 3076 and 3077 simultaneously TMC No.1517, 1517/A and 2138/44/2 were to be called as suit properties and the plaintiff has furnished the genealogy of their family. It is further stated that the suit properties were originally belonged to his deceased father-Mahadevappa Mudakappa Hanamanagasi, who died leaving behind him, his wife and children. During the lifetime of his father, defendant No.2 ousted him, his wife and children and hence plaintiff stayed in a rental house at Saundatti along with his family for 20 years. After the death of his father, the plaintiff had asked defendant No.2 to effect partition but on the advise of elderly persons, defendant No.2 permitted the plaintiff to stay in the suit house bearing TMC No.1517 and 1517/A along with his wife and children. Accordingly, the plaintiff along with his family stayed in the suit house after the death of his father. Accordingly, the plaintiff along with his family stayed in the suit house after the death of his father. The father of the plaintiff was serving as a peon in Revenue Department, his elder son deceased Yallappa i.e., husband of defendant No.2 was serving as a cook in the Government hostel and after the death of said Yallappa, his wife i.e., defendant No.2 was appointed as a cook on compassionate ground. The father of the plaintiff had purchased all the suit properties (CTS Nos. 3070, 3076 and 3077 simultaneously TMC No. 151/, 1517/A and 2138/44/2) out of the joint family funds. Defendant No.2 had taken 20 tola gold and cash of Rs. 4 lakhs. When the plaintiff asked for share in gold and cash, defendant No.2 left the suit properties to the plaintiff. There is no partition between the plaintiff and defendants No.2 to 6. The plaintiff had agreed to bear all the expenses i.e., education, marriage etc., in respect of defendant No.2 and he did accordingly. Defendant No.2 got entered her name along with her childrens' name in respect of TMC No.1517/A and her name alone in TMC No.2138/44/2 taking undue advantage of the innocence of the plaintiff. Plaintiff had renewed the old suit house and obtained permission from TMC, Saundatti to construct towards eastern side in the year 2005-06. Defendant No.2 had purchased two houses in Araligidad Oni at Ramapur site and another house near BDO Office at Saundatti and started to reside there only and she did not give half share in gold and cash to the plaintiff. Defendant No.2, in the month of August 2010, started removing the flower plants and fruit trees in the open site bearing CTS No.3011 and TMC 1517 and tried to construct structure in CTS No.3077 and TMC No. 1517/A. The plaintiff, after ascertaining the records relating to two open sites i.e., TMC No.1517 and 2138/44/2, came to know that defendant No.2 alone has entered her name in TMC No.2138/44/2 and got entered her name along with her childrens' name i.e., TMC No. 1517/A, by way of bogus apasat watni patra. There was no partition called apasat watni between the plaintiff and defendants No.2 to 6. According to the plaintiff, defendant No.2 has transferred the said properties behind the back and without his knowledge. There was no partition called apasat watni between the plaintiff and defendants No.2 to 6. According to the plaintiff, defendant No.2 has transferred the said properties behind the back and without his knowledge. Defendant No.2 has no right, title and interest over the suit properties to transfer and to enter her name alone. Hence, the plaintiff was constrained to file a suit for partition and separate possession. On receipt of the suit summons, defendants No.2, 5 to 8 entered appearance through their respective counsels. Defendant No.2 filed written statement and defendants No.5 and 6 adopted the same. Defendant No.8 filed his separate detailed written statement. in spite of receipt of suit summons, defendants No. 4 remained absent and therefore, they were placed ex parte. In the written statement filed by defendant No.2 adopted by defendants No.5 and 6 along with all the contentions of the plaint, description of the suit property is specifically denied and genealogy is admitted. The defendants specifically submitted that the partition took place in respect of the suit properties before the elders of the village on 6.10.1990 and as per that partition, an application was filed before the CTS authorities and the name of the plaintiff came to be entered in respect of Municipal No.1517 and the name of defendant No.2 came to be entered in respect of Municipal No.1517/A. From the date of partition (6.10.1990)d the plaintiff and defendants are residing separately and enjoying the properties separately. The property which was in the possession of defendant No.2 and her children was fallen due to heavy rain and hence defendant No.2 intended to construct a building over the said property and accordingly obtained permission from the municipal authorities. Therefore, the plaintiff has no right, title and interest over the CTS No.3077 and he is not at all in possession and enjoyment of the said property. The property bearing CTS No.3077 is fallen to the extent of 50% and to avoid further damage to the property, defendant No.2 started construction of the building and stored the materials. The plaintiff, knowing fully well all the above said facts tiled a false suit against defendant No.2. Hence, the defendants sought for dismissal of the suit. Defendant No.8 filed his separate written statement stating that the suit of the plaintiff is false, frivolus, vexatious and not tenable in the eye of law. Description of the property has been specifically denied. The plaintiff, knowing fully well all the above said facts tiled a false suit against defendant No.2. Hence, the defendants sought for dismissal of the suit. Defendant No.8 filed his separate written statement stating that the suit of the plaintiff is false, frivolus, vexatious and not tenable in the eye of law. Description of the property has been specifically denied. He specifically submits that the property bearing TMC No.2138/44/2 measuring 30"x 40"situated at Basava Sadan Saundatti is the self acquired property of defendant No.2-Somawa W/o Yallappa Hanamanagasi who sold the said property in favour of defendant No.7-Mahe.devi W/o Mallikaijun Gudiyavar, who purchased the said property the sale consideration amount of Rs. 45,000/-. After purchasing the said property, defendant No.7 raised loan from State Bank of India, Saundatti. Since the loan granted by the Bank was not repaid by defendant No.7, the Bank decided to sell away the said property. Defendant No.8 after examining the documents purchased the same for Rs. 4,90,000/- and executed duly registered sale deed on 06.07.2007. Since then, defendant No.8 is in lawful possession and enjoyment of the said property i.e., TMC No.2138/44/2. Therefore, the plaintiff has no right, title or interest over the suit property and he has filed a false suit. Hence, he also sought for dismissal of the suit with cost. 4. Based upon the pleadings, the Court below has framed the following issues: Issues: 1. Whether plaintiff proves that suit schedule properties are joint family properties of plaintiff and defendants No.2 to 6? 2. Whether the plaintiff proves his possession over the suit schedule properties? 3. Whether the plaintiff proves the interference by the defendants No.2 to 6 with his possession of suit schedule properties ? 4. Whether defendants No.2 to 6 prove previous partition dated 6.10.1990? 5. Whether the plaintiff is entitled for % share in all the suit schedule properties? 6. Whether the plaintiff is entitled for permanent injunction as prayed for? 7. What 'decree/ order ? In order to substantiate his case, the General Power of Attorney of plaintiff himself examined as PW-1 and got marked 28 documents as Exs.P-1 to P-28 and closed his side. 6. Whether the plaintiff is entitled for permanent injunction as prayed for? 7. What 'decree/ order ? In order to substantiate his case, the General Power of Attorney of plaintiff himself examined as PW-1 and got marked 28 documents as Exs.P-1 to P-28 and closed his side. On behalf of the defendant No.2, the defendant got herself examined as DW-1 and defendant No.8 got himself examined as DW-2 and one independent witness was examined as DW3 and defendants got marked 6 documents as Exs.D1 to D6 in support of their case with respect to the suit schedule properties depicted therein. 5. The learned Senior Civil Judge, on hearing the arguments of the counsel for the plaintiff and defendants No.2 adopted by-defendants No.5 and 6 and defendant No.8, answered Issue No. 1 in the Affirmative, Issues No.2 and 5 partly in the Affirmative, Issue No.3 does not survive for consideration, Issues No.4 and 6 in the Negative, Issue No.7 as per final order and accordingly, partly decreed the suit of the plaintiff declaring ?rd share in the properties bearing TMC Nos.1517, 1517/A and 2138/44/2 and further declared that the plaintiff shall be put in possession of the said properties in accordance with Section 54 of CPC. 6. Being aggrieved, defendant No.8 has filed this appeal seeking to set aside the judgment and decree dated 23.11.2013 in O.S.No.40 of 2010. 7. The teamed counsel for the appellant/defendant No.8 contends that the only point involved in this appeal is in respect of property bearing TMC No.2138/44/2 (Item No.3 i.e., CTS No.3077 measuring 66.57 Sq. Mtr. of Saundatti village). Defendant No.2 has right, title and interest in respect of the said property since it is her self acquired property and she had sold to defendant No.7 and defendant No.7 in turn sold the said property in favour of defendant No.8-appellant. The trial Court, in the absence of clinching evidence adduced by the plaintiff has recorded a finding that all the suit properties are joint family properties and declared ?rd share to the plaintiff without considering that the property bearing TMC No.2138/44/2 is a self acquired property of defendant No.2 and the same being purchased by defendant No.8-appellant Hence, the present appeal has been filed by the defendant questioning the legality and correctness of the judgment and decree passed by the Court below. 8. On the other hand, respondents are served and unrepresented. 9. 8. On the other hand, respondents are served and unrepresented. 9. On hearing the learned counsel, the following point arises for our consideration: "Whether the impugned judgment and decree passed by the learned Senior Civil Judge, Saundatti, in O.S. No.40 of 2010 is justified in law"? 10. The learned Senior Civil Judge having gone through the evidence of the plaintiff and the defendants, has come to the conclusion that the suit properties are held to be the joint family properties of the plaintiff and defendants-1 to 6 together. The plaintiff is the male member. Defendant No. 1 is the sister of the plaintiff and defendant No.2 is the sister-in-law of the plaintiff. Defendants No.3 to 6 are the children of defendant No.2 and her pre-deceased husband. Therefore, the learned Judge, declared ?rd share to the plaintiff, defendant No. 1 and pre-deceased brother of the plaintiff and not half share as claimed by the plaintiff. 11. After going through the entire material on record, it is seen that the controversy of partition is between the plaintiff and defendant No.2. Defendant No.2 is none other than the sister-in-law representing the share of plaintiffs deceased brother-Yallappa Hanamageri. It is the claim of the plaintiff that the suit properties are the joint family properties of the plaintiff and defendants. Defendant No.2 has contended that old CTS No.3070, 3076, 3077 which bear TMC Nos.1517 and 1517/A are the joint family properties, whereas TMC No.2138/44/2 claims to be her self acquired property. The assessment extracts and CTS extracts disclose that the property bearing CTS No.3070 were standing in the name of the father of the plaintiff, CTS No.3076 which was standing in the name of the plaintiff s father came to be entered in the name of the plaintiff and defendant Nos.1 to 6 as heirs. Ex.P3 discloses that the property bearing CTS No.3077 was entered in the name of defendant No.2 and property bearing No.2138/44/2 was originally given by the father of the plaintiff to defendant No.2. Ex.P7 discloses that the said property stands in the name of defendant No.2. Factum of partition between the plaintiff and his father has not been established. There is no dispute in respect of the property bearing TMC Nos.1517 and 1517/A. However, the dispute is with regard to property bearing TMC No.2138/44/2. Ex.P7 discloses that the said property stands in the name of defendant No.2. Factum of partition between the plaintiff and his father has not been established. There is no dispute in respect of the property bearing TMC Nos.1517 and 1517/A. However, the dispute is with regard to property bearing TMC No.2138/44/2. There is no dispute with regard to the said property being sold by defendant No.2 to defendant No.7 and 8, who claims to be the subsequent purchasers of the said property. The plaintiff has failed to establish the possession in respect property bearing TMC No.2138/44/2, which was the self-acquired property of defendant No.2. 12. Keeping in view all the contentions of the learned counsel for the appellant, we are of the view that the judgment and decree passed by the learned Senior Civil Judge, Saundatti, is modified. Accordingly, we answer the substantial question and proceed to pass the following order: 13. The appeal filed by the appellant-defendant No.8 under Order 41, Rule 1 read with Section 96 of the Code of Civil Procedure is partly allowed. Consequently, the judgment and decree in O.S. No.40 of 201C passed by the learned Senior Civil Judge, Saundatti, dated 23.11.2013 is hereby set aside insofar as it relates to Sl.No.3 of Suit schedule "A" property namely TMC.No.2138/44/2 measuring 30/45 of Saundatti. The appeal is dismissed in respect of items 1 and 2 of the suit properties. The judgment and decree dated 23.11.2013 passed in O.S.No.40 of 2010 by the learned Senior Civil Judge at Saundatti is accordingly modified. No costs.