JUDGMENT : K.S.Mudagal, J. This appeal of defendant No.2 arises out of the judgment and decree dated 14.10.2014 in Regular Appeal No.129/2012 passed by the II Additional Senior Civil Judge & JMFC., Kolar (Itinerating at Mulbagal). 2. By the impugned judgment and decree, the First Appellate Court partly allowed the appeal of the present appellant and modified the judgment and decree dated 22.2.2009 passed by the Principal Civil Judge (Jr.Dn.) & JMFC., Mulbagal in O.S.No.130/2011 and confirmed the judgment and decree passed in the said suit for partition and possession of plaint 'A' schedule property and dismissed the suit in respect of plaint 'B' schedule property. 3. By the said judgment and decree in O.S.No.130/2001, the Trial Court had decreed the suit of the plaintiffs for partition and separate possession of their 1/3rd share in all the suit schedule properties and for mesne profits. 4. Appellant was defendant No.2, respondent Nos.1 to 4 were plaintiffs and respondent Nos.5 to 10 were defendants-1 and 3 to 7(a) & (b) in O.S.No.130/2001. Plaintiffs filed O.S.No.130/2001 for partition and separate possession of their 1/3rd share in the suit schedule property. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court. 5. The subject matter of the suit were the five landed properties shown in Schedule 'A' of the plaint and one house property shown in Schedule 'B' of the plaint. 6. The case of the plaintiffs was as follows: They were the wife and children of one Marappa. Said Marappa, Venkatappa and defendant No.7 Pakeerappa were the children of one Sanjeevappa and they all constituted the joint Hindu family. During the life time of Sanjeevappa, he was the Kartha of the family. On his death, Venkatappa being the eldest son and after the death of Venkatappa, defendant No.7 being the next eldest male member of the family were managing the affairs of the family. Venkatappa, Pakeerappa and Marappa and plaintiffs and defendants being the heirs of the said Sanjeevappa were enjoying the suit schedule properties as joint family properties. That on the death of Marappa, plaintiffs demanded their share, however, defendants declined to grant their share. 7. Defendant Nos.2 to 4 though entered appearance through their counsel did not choose to file written statement. Defendant Nos.1, 3 to 7 and 9 though served did not appear to contest the suit. 8. That on the death of Marappa, plaintiffs demanded their share, however, defendants declined to grant their share. 7. Defendant Nos.2 to 4 though entered appearance through their counsel did not choose to file written statement. Defendant Nos.1, 3 to 7 and 9 though served did not appear to contest the suit. 8. On behalf of the plaintiffs, first plaintiff was examined as PW-1 and Exs.P1 to P14, the genealogical tree, RTC extracts, Demand register extract and mutation register extract were produced. 9. The trial court on hearing the plaintiffs' Counsel decreed the suit holding that the oral and documentary evidence of the plaintiffs establish the case of the plaintiffs. Since defendants did not choose to contest the case, an adverse inference was drawn against them. 10. Except defendant No.2, other defendants did not challenge the said judgment and decree. Defendant No.2 challenged the judgment and decree of the first appellate court in R.A.No.129/2012 before the II Additional Senior Civil Judge & JMFC., Kolar (Itinerating at Mulbagal). 11. The first appellate court by the impugned judgment and decree referring to Exs.P1 to P15 held that Ex.P9 Demand register extract produced to prove the claim of the plaintiffs in respect of plaint schedule 'B' property does not pertain to the said property, therefore, the trial court was not justified in granting a decree in respect of plaint schedule 'B' property. 12. So far as plaint 'A' schedule property, the first appellate court held that oral and documentary evidence proved the case of the plaintiffs in respect of 'A' schedule property. It was further held that non-filing of the written statement by the defendants amounts to admission of the plaintiffs' case and thus confirmed the judgment and decree of the trial court in respect of 'A' schedule property. 13. Sri G.Papi Reddy, learned counsel for the appellant submits that the case involves substantial question of law on the following grounds: (i) In the plaint there is no averment that the properties were standing in the name of Sanjeevappa; (ii) Sanjeevappa's name was not shown in any of the revenue records produced by the plaintiffs; (iii) The first appellate court did not exercise its jurisdiction as required under Order XLI Rule 31 CPC, by raising proper points for consideration and re-appreciating the evidence. In support of his contentions, he relies upon the following judgments: 1. C.N.Ramappa Gowda v. C.C.Chandregowda, (2012) 5 SCC 265 2. In support of his contentions, he relies upon the following judgments: 1. C.N.Ramappa Gowda v. C.C.Chandregowda, (2012) 5 SCC 265 2. Bangarappa v- Rudrappa and another ILR 2012 Kar 1020 3. Maya Devi v- Lalta Prasad AIR 2014 SC 1356 14. Per contra, Smt.P.V.Kalpana, learned counsel for respondents Nos.1 to 4 submits as follows: (i) The defendants did not file written statement at all to deny the case of the plaintiffs; (ii) Even in the appeal memo filed before this court, the appellant did not challenge the relationship between the parties, per contra, he set up a prior partition of the year 1974 and he did not choose to file written statement taking up such contention or prove the same; (iii) The revenue records produced before the trial court showed that even defendants' names appeared in them purportedly under a partition. That goes to show that suit schedule properties were the joint family properties; (iv) Unless there is a pleading when there are concurrent findings, no substantial question of law arises. 15. This being a second appeal under Section 100 CPC can be admitted for hearing, only if the appellant makes out substantial question of law in the case. 16. What is 'substantial question of law' is sufficiently expounded by the Hon'ble Supreme court in the following judgments: 1. Santosh Hazari vs- Purushottam Tiwari (Dead) by LRs, (2001) AIR SC 965 2. Gurnam Singh (Dead) by LRs & Others vs- Lehna Singh (Dead) by LRs, 2019 AIR SC 1441. 17. In the aforesaid two judgments, it was held that on the question of facts, the first appellate court is the last court. It was further held that to be a 'substantial question of law', there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and an entirely new point raised for the first time before the High Court is not a substantial question involved in the case unless it goes to the root of the matter. 18. 18. It was held that while invoking Section 100 CPC, the High Court cannot interfere with the concurrent findings of the courts below unless it is shown that conclusions drawn by the lower court were erroneous being: (i) contrary to the mandatory provisions of the applicable law; OR (ii) contrary to law as pronounced by the apex court; OR, (iii) based on an inadmissible evidence or no evidence. 19. As rightly pointed out by the learned counsel for the respondents even in the appeal memo in this case, the appellant does not dispute the relationship. Contrary to that he sets up a partition of the year 1974 between Venkatappa, Pakeerappa and Marappa. That itself amounts to the admission that Venkatappa, Pakeerappa and Marappa constituted joint family and enjoyed the properties as joint family properties. 20. So far as the contention that there was no pleading regarding properties being joint properties or Sanjeevappa, para-2 of the certified copy of the plaint produced by the plaintiffs show that plaintiffs stated about the relationship and death of Sanjeevappa, his sons Venkatappa and Pakeerappa acting as Kartha of the family, so also during the life time of Sanjeevappa, he being the Kartha of the family. Further they have stated that the plaintiffs and defendants are the joint family members and were enjoying the properties as co-parceners. Therefore, there is no merit in the contention that there was no foundation laid in the pleading regarding the plaintiffs and defendants being joint family members and suit properties being the joint family properties. 21. The defendants did not choose to file written statement to deny the case of the plaintiffs. Order VIII Rule 5(1) CPC states that when there is no specific denial of the plaint averments by the defendants, they shall be taken to be admitted except as against a person under disability. 22. It is true that even in the absence of such written statement, the court can call upon the plaintiff to prove his case. In the similar manner, the trial court called upon the plaintiffs to prove their case and they adduced evidence. 22. It is true that even in the absence of such written statement, the court can call upon the plaintiff to prove his case. In the similar manner, the trial court called upon the plaintiffs to prove their case and they adduced evidence. Though the trial court did not discuss the documents produced by the plaintiffs and the oral evidence, the first appellate court appreciated in detail, the evidence adduced by the plaintiffs and held that the document Ex.P9 produced relating to plaint schedule 'B' property did not pertain to the said property, thus, modified the decree. That itself shows the application of mind of the first appellate court. 23. The trial court did not decree the suit invoking Order VIII Rule 10 CPC, therefore, the judgment relied upon by the learned Counsel for the appellant in this regard in C.N.Ramappa Gowda's case is not applicable. The judgment of the first appellate court shows that it was not passed in a mechanical manner as was the case in Ramappa Gowda's case. On that ground also, the said judgment is not applicable. 24. In Maya Devi's case (supra), relied upon by the learned Counsel for the appellant, the written statement was filed and there was a denial. That is not the case here. Therefore, even the said judgment is not applicable to the facts of the case. 25. The first appellate court re-appreciated the evidence and decided the appeal by the impugned judgment. When there is no denial of the plaintiffs' case by way of written statement, Order VIII Rule 5(1) CPC applies. There was no impediment for the first appellate court to confirm the decree in respect of 'A' schedule property. When there is no pleading at all, for the first time, whether there was a partition in the year 1974 cannot be urged as substantial question of law. 26. This Court does not find any substantial question of law in the case to admit the appeal. Therefore, the appeal is dismissed with costs. In view of disposal of the appeal, I.A.No.2/2015 does not survive for consideration and disposed of accordingly.