JUDGMENT : This first appeal and cross-objection are directed against the judgment and decree dated 13.04.2005 made by the learned Civil Judge (Sr.Dn.), Chikkodi, whereby the 1st respondent’s suit in O.S. No. 28 of 1992 for partition and separate possession of suit properties was decreed. 2. Parties will be referred to as per their ranking in RFA No. 980 of 2005 for the sake of convenience. 3. The brief facts stated are: (a) The appellant and respondent No.1 are brothers. Respondent No.1 had filed a civil suit in O.S. No. 28 of 1992 seeking a decree for partition and separate possession of the suit properties inter alia contending that he was defrauded by the appellant. On service of notice, the defendants appeared and filed their independent Written Statements resisting the suit claim. Based upon the pleadings of the parties, the Court below framed initially ten issues and thereafter two more additional issues came to be added which are found at paragraph 7 of the impugned judgment as under: (i) “Whether the plaintiff proves that the registered partition deed dated 22.12.1971 set-up by the defendant 1 resulting in allotment of the land bearing R.S. No.23 to him (the plaintiff) and the suit house and open space properties bearing CTS No.365 and 385 allotted to him (the defendant.1) was effect of practicing fraud and misrepresentation? (ii) If not, whether the plaintiff alternatively proves that the said partition was not binding on him on account of the same being neither equitable nor legal? (iii) Whether the defendant.1 and 4 proves that on 21.06.1971 the plaintiff and of them the defendant.1 sold the suit land bearing R.S. No. 6 for sum of Rs.6,000/- of them, to the defendant.4 by executing the registered sale deed? (iv) If so, whether the plaintiff proves that the said sale deed was false, fabricated, forged one and does not bind him of his share in the said suit land? (v) Whether the defendant.1 proves that the suit land bearing R.S. No.308 was and is his self-acquired property? (vi) Whether the defendants.1 and 4 to 7 prove that unless and until the land bearing R.S. No.23 and the truck are included as the suit properties the present suit is not tenable? (vii) Whether the defendant.1 proves that the suit is bad for non-joinder of necessary parties? (vi) Whether the defendants.1 and 4 to 7 prove that unless and until the land bearing R.S. No.23 and the truck are included as the suit properties the present suit is not tenable? (vii) Whether the defendant.1 proves that the suit is bad for non-joinder of necessary parties? (viii) Whether the defendants.1 and 4 to 7 prove that each one of them is entitled to the compensatory costs of Rs.2000/-? (ix) Whether the defendants.1 and 4 to 7 prove that valuation of the suit properties made and court fee paid there on are improper? (x) What order or decree? Addl. Issue No.1: Whether the defendants.2 and 3 prove that the sale of the property in R.S. No.23A by plaintiff dated 30.05.1977 in favour of Gangaram and by defendant.1 in R.S. No.6 dated 21.06.1971 in favour of defendant.4 and by plaintiff and defendant.1 in favour of the defendant.5 are not binding on them? Addl. Issue No.2: Whether the defendants.2 and 3 are entitled to the partition and separate possession of the properties? If so, what is their share?” (b) The plaintiff was examined as PW-1 and 11 documents came to be marked as Exs.P-1 to 11 to prove his case. From the defendants’ side, three witnesses were examined as DW-1, DW-2 and DW-3. They got marked nine documents as Exs.D-1 to D-9. (c) On the basis of the pleadings and the evidence both oral and documentary placed on record, the trial court decreed the suit in part holding that the plaintiff is entitled to ½ (one half) share in R.S. No.308 of Nippani and that defendant Nos.2 and 3 were awarded 1/12th share in the sale price of Rs.15,000/- from the plaintiff for he having sold the land in R.S. No.23 of Yarnal village and in Rs.4,000/- from defendant No.1 for he having sold the house property in CTS No.385 of Nippani. 4. The learned counsel for the appellant firstly contended that the plaintiff has suppressed about land in R.S. No.23 admeasuring 3 Acres 39 Guntas which was allotted to him in the 1971 registered Partition which he has sold to one Mr. Gangaram Bathale by a registered sale deed dated 30.05.1977 and that out of the sale proceeds, he bought property in CTS No.4450. Therefore, the plaintiff having not approached the Court with clean hands, clean heart and clean head is liable to be non-suited. 5. Gangaram Bathale by a registered sale deed dated 30.05.1977 and that out of the sale proceeds, he bought property in CTS No.4450. Therefore, the plaintiff having not approached the Court with clean hands, clean heart and clean head is liable to be non-suited. 5. The learned counsel for the appellant next contended that item No.3 in the suit schedule ‘A’ is a tenanted land in RS No.308 admeasuring 5 acres 19 guntas and therefore, the same does not figure in the 1971 partition. However, on the day of partition itself, there was an agreement between the brothers whereunder the plaintiff in consideration of Rs.1,500/- had given up his claim over this land in respect of which, subsequently the Land Tribunal granted occupancy in favour of defendant. This fact is also suppressed by the plaintiff and therefore, he is liable to be non-suited on this ground too. 6. The learned counsel for the appellant further submits that it is only the defendant, who acting on the agreement dated 22.12.1971, had filed Form No.7 before the jurisdictional Land Tribunal which granted occupancy exclusively in his favour and therefore, this property was not available for partition. He also banks upon the Rule of Primogeniture to contend that the grant of occupancy in favour of an younger member of the family will not enure to the benefit of the joint family and that such occupancy should be exclusively for the benefit of the grantee only. 7. The learned counsel for the respondents argues from his cross-objection that the impugned judgment and decree insofar as they deny relief to the plaintiff in respect of the alienation of land in Sy.No.6 of Yarnal village by a registered sale deed dated 21.06.1971 is erroneous and unsustainable. He contends that the reasoning of the court below that this alienation was made prior to the registered Partition Deed and therefore, same was not available for partition in December 1971 is unsustainable. 8. The learned counsel for the respondents submitted the counter arguments to the augments of the learned counsel for the appellant. He contends that the reasoning of the court below that this alienation was made prior to the registered Partition Deed and therefore, same was not available for partition in December 1971 is unsustainable. 8. The learned counsel for the respondents submitted the counter arguments to the augments of the learned counsel for the appellant. In sum and substance, he states that the land in Sy.No.308 which is enlisted as item No.2 in the suit schedule ‘A’ was not the subject matter of partition in December 1971 inasmuch as it was only a tenanted land and therefore, the same was set apart for being treated for partition if and when the occupancy is granted. He further submits that since the Land Tribunal has granted the occupancy, the same should enure to the benefit of plaintiff also inasmuch as the tenancy was of their father which the sons have inherited after the demise of their father. 9. I have carefully considered the rival contentions of the parties. The land in Sy.No.6 of Yarnal village which was jointly alienated by registered Sale Deed dated 21.06.1971 much before December 1971 partition cannot be a subject matter of litigation inasmuch as, as on the date of partition, the land was not available to the family at all. It is rightly held by the Court below and there is no reason to upset the said findings. Therefore, the Cross-objection is liable to be rejected as rightly contended by the learned counsel for the appellant defendant. 10. The Cross-objection having attained the terminal fate, the bone of contention that remains between the rival parties relates to the land in RS No.308 which measures 5 acres 19 guntas. Admittedly, this was not included in the registered Partition Deed dated 22.12.1971 which is marked as Ex.D-2 in the evidence of defendants. 11. There is lot of force in the contention of the appellant defendant that the claim over this land was given up by an agreement dated 22.12.1971 for a consideration of Rs.1,500/-. Subsequently, the appellant defendant No.1 had filed an application in Form No.7 under Section 48A of the Karnataka Land Reforms Act, 1961; this came to be favoured by the Land Tribunal by granting occupancy exclusively to this appellant, who admittedly is a younger brother of the respondent. Subsequently, the appellant defendant No.1 had filed an application in Form No.7 under Section 48A of the Karnataka Land Reforms Act, 1961; this came to be favoured by the Land Tribunal by granting occupancy exclusively to this appellant, who admittedly is a younger brother of the respondent. This application for grant of occupancy was filed subsequent to 1971 partition which did not mention anything about the said property having been retained for the benefit of the family at a later point of time. 12. I have carefully considered the argument of the appellant and the contention of the respondents insofar as the land in RS No.308 admeasuring 5 acres 19 guntas is concerned. I am of the considered view that the plaintiff does not have any right whatsoever over the said land for the following reasons: (i) The said land was tenanted land and the father of the parties was the cultivator in his capacity as a tenant. But, the registered Partition Deed at Ex.D-2 dated 22.12.1971 does not whisper anything about this land having been retained by both the brothers for being partitioned at a later point of time. The absence of mentioning of this land in the partition deed is very conspicuous and significant too. (ii) After the Partition Deed was executed and registered on 22.12.1971, the same day the plaintiff and the defendant No.1 entered into an agreement whereunder, the plaintiff has given up his claim over the said land in consideration of Rs.1,500/- paid by the defendant No.1. This agreement is in the nature of a family arrangement, at Ex.D1 a concept in Hindu Law recognised by the Apex Court in a catena of decisions regardless of stamp duty and registration. (iii) The fact that the defendant No.1 alone filed Form No.7; he fought the case against the land owners before the Land Tribunal single handedly; he got the occupancy granted exclusively in his favour and accordingly the entries came to be made in the land records. The respondent never laid any challenge to the grant of occupancy in favour of appellant exclusively by filing appeal or Writ Petition. He has also not challenged the Revenue Entries made in the name of appellant exclusively either. All this goes to show that the aforesaid ‘family arrangement’ Ex.D1 was acted upon and thus, the land exclusively has been left to defendant No.1. He has also not challenged the Revenue Entries made in the name of appellant exclusively either. All this goes to show that the aforesaid ‘family arrangement’ Ex.D1 was acted upon and thus, the land exclusively has been left to defendant No.1. (iv) The Land Tribunal admittedly has granted occupancy in favour of the defendant No.1 exclusively and the defendant No.1 is not an eldest member of the family whereas the plaintiff is. Thus, the fact matrix of the case excludes invocability of the Rule of Primogeniture operating amongst Hindus and this supports the view of the defendant No.1 that he alone is the owner of the land in question. (v) The plaintiff approached the Court below with a false story of fraud and fabrication of registered partition deed of December 1971 at Ex.D-2. The Court negatived his contention and held that the partition is effective and also between the parties. He has also suppressed about he having disposed of the land in RS No.23 that was allotted to him in the 1971 partition. He has also denied the 1971 Agreement at Ex.D-1. (vi) This apart, the plaintiff approached the court below by a blame worthy conduct of not disclosing the sale of land in Sy.No.6 of Yarnal village by a registered sale deed dated 21.06.1971 jointly executed by himself and defendant No.1 six months before the registered partition deed. The court below rightly denied the relief to the plaintiff in respect of this land. Thus, there is a huge amount of unconscionability attributable to the plaintiff. All these give an impression that the plaintiff is not a gentleman whose pleadings and the deposition can be taken at their face value. 13. For all the reasons stated above, I pass the following: ORDER (i) The Cross Objection in RFA Crob. No.24 of 2005 filed by the respondent No.1 plaintiff is dismissed with a cost of Rs.10,000/- (Rupees Ten Thousand only); (ii) The regular first appeal in RFA No.980 of 2005 filed by the defendant No.1 is hereby allowed; (iii) The impugned judgment and decree of the Court below is set aside to the extent the same relates to agricultural land in R.S. No. 308 admeasuring 5 acres 19 guntas in Nippani, Chikkodi Taluk; (iv) The suit of the respondent in O.S. No.28 of 1992 to the extent which relates to the said land is dismissed.