JUDGMENT : 1. This appeal is filed by defendant No.2 challenging the judgment and decree passed in O.S.No.65/2006 dated 18.01.2010 which is confirmed in R.A.No.26/2010 dated 18.06.2011 by the Additional District Judge, Ballari. 2. The parties are referred to as per their ranking before the trial Court. 3. Brief facts of the case are that, plaintiffs filed a suit for partition and separate possession in respect of the suit schedule property. The original propositus Goolajja had three sons by name, Veeranna, Saneppa and Patribasappa. Sanappa has got a son by name Malesetty Guleppa, i.e., defendant No.1 and his wife by name Gowramma who is plaintiff No.4 in the suit. They got two sons and five daughters, i.e., Shanmukhappa defendant No.2, Erappa defendant No.3, Ummaka plaintiff No.1, Lalitamma, plaintiff No.2, Ratnamma died leaving behind Shivaraj plaintiff No.3, Siddamma plaintiff No.5 and his wife Gowramma plaintiff No.4. The contention of the plaintiffs is that the suit schedule properties are fallen to the share of Sannekappa, i.e., father of defendant No.1. The father of defendant No.1 was in possession and enjoyment of the suit schedule properties and after his death, plaintiffs and defendant Nos.1 to 3 are in joint possession and enjoyment of the same. Suit schedule properties are the joint family ancestral properties of the plaintiffs and defendant Nos.1 to 3. After the marriage of plaintiff Nos.1 and 2, they are residing in their respective husband’s house, the marriage of plaintiff No.2 took place on 10.04.1998 at Sasalavada village. Her husband expired about 5 years back and Rathnamma died leaving behind her only son plaintiff No.3-Shivaraj. There was no partition between the plaintiffs and defendant Nos.1 to 3. Defendant No.1 is the Kartha of the joint family. Suit schedule properties are standing in the name of defendant Nos.1 and 2. The plaintiffs requested the defendants to effect partition, but the defendants refused to effect a partition. Hence, the plaintiffs filed a suit for partition and separate possession. 4. Defendant Nos.1 to 6 appeared through their counsel. Defendant No.1 appeared in person and filed a memo stating that he has no objection to allot share to the plaintiffs. Defendant No.2 filed written statement and defendant Nos.4 to 6 adopted the written statement filed by defendant No.2. Defendant No.3 has not filed any written statement. It is the case of defendant No.2 that suit schedule properties are the joint family ancestral properties. Defendant No.2 filed written statement and defendant Nos.4 to 6 adopted the written statement filed by defendant No.2. Defendant No.3 has not filed any written statement. It is the case of defendant No.2 that suit schedule properties are the joint family ancestral properties. Defendant No.2 contended that during the year 1979 there was oral partition among the members of the family in the presence of elders. Plaintiff No.1 had taken her share from defendant No.2 by way of hard cash of Rs.50,000/-in the presence of elders. She had no right to demand the partition under the Woman Rights to Property Act. Plaintiff No.2 had taken 80 grams of gold, 50 grams of silver and cash of Rs.50,000/-as her share from defendant No.2. Her marriage was performed by defendant No.2 by raising loan from moneylenders and he is still due to the villagers. Defendant No.1 has given one house bearing No.16/17 of Hirehagdal Grama measuring 30 x 13½ to plaintiff No.2 as a share. Mother of plaintiff No.4 is still alive, she is necessary party to the suit. Defendant No.3 is having RCC building at Kottur. Plaintiffs have not included the said house property. Defendant No.3 has sold the property fallen to his share to one Bidaracaddi Channabasamma for Rs.3,000/-under the registered sale deed dated 24.04.1981. The said property has not been included in the suit. Daughter of defendant No.1 died about 6 years back leaving behind her two sons namely, Shivaraj and Jambunatha. Plaintiffs and defendant No.3 have colluded each other and filed false suit against defendant No.1. Hence, prayed to dismiss the suit. 5. During the pendency of the suit, plaintiff got impleaded plaintiff Nos.5 and 6 and defendant No.1 died on 04.12.2008 and defendant No.2 submitted his additional written statement reiterating the averments made in the earlier written statement and prayed for dismissal of the suit. 6. The trial Court on the basis of the pleadings framed the following issues: i) Whether the plaintiffs prove that the suit schedule properties are the joint family properties of the plaintiff and defendants No.1 to 3? ii) Whether the plaintiffs prove that they have got a right of 1/7th share in the suit schedule properties? 6. The trial Court on the basis of the pleadings framed the following issues: i) Whether the plaintiffs prove that the suit schedule properties are the joint family properties of the plaintiff and defendants No.1 to 3? ii) Whether the plaintiffs prove that they have got a right of 1/7th share in the suit schedule properties? iii) Whether the plaintiffs prove that the sale deed executed by the defendants No.1 & 2 in favour of defendants No.3 to 6 in respect of item No.2 of the suit schedule properties are not binding upon them? iv) Whether the defendants prove that there was an oral partition took place in the year 1979 between the plaintiff No.1 & 2 and mother of the plaintiff No.3 and 4 and defendants No.1 to 3 as averred in para-10(k) of his written statement? v) Whether the 2nd defendant proves that the 1st plaintiff has taken her share by way of cash of Rs.50,000/-from the 2nd defendant? vi) Whether the 2nd defendant proves that 2nd plaintiff has taken her share by way of cash of Rs.50,000/-, 80 grams of gold and 50 grams of silver from defendants No.1 to 3? vii) Whether the 2nd defendant proves that the mother of the 4th plaintiff Siddamma has taken her respective share from the 1st defendant by way of registered gift deed dated 19.3.1986 as averred in para-10(i) of his written statement? viii) Whether the defendants prove that the suit is bad for non-joinder of necessary parties? ix) Whether the plaintiff proves that they are entitled for the reliefs as sought for? x) What order or decree? 7. The plaintiff No.2 in support of their case, examined herself as PW-1 and got marked documents Exs.P-1 to P-12. Defendant No.2 got examined as DW-1 and defendant No.4 examined as DW-2 and three other witnesses were examined in support of the defence of the defendants and got marked documents as Exs.D-1 to D-20. 8. x) What order or decree? 7. The plaintiff No.2 in support of their case, examined herself as PW-1 and got marked documents Exs.P-1 to P-12. Defendant No.2 got examined as DW-1 and defendant No.4 examined as DW-2 and three other witnesses were examined in support of the defence of the defendants and got marked documents as Exs.D-1 to D-20. 8. The trial Court considering the pleadings, oral and documentary evidence has held that plaintiffs have proved that the suit schedule properties are the joint family properties of plaintiffs and defendants No.1 to 3; plaintiff has proved that they have got right of 1/7th the share in the suit schedule property; plaintiffs have proved that sale deed executed by the defendants No.1 and 2 in favour of defendants No.3 to 6 in respect of item No.2 of the suit schedule properties are not binding upon the plaintiffs; further held that defendants have failed to prove that there was an oral partition took place in the year 1979 between the plaintiff No.1, 2 and mother of plaintiff Nos.3 and 4 and defendants No.1 to 3; further held that defendant No.2 has failed to prove that first plaintiff has taken her share by way of cash of Rs.50,000/-and 80 grams of gold and 50 grams of silver from defendants No.1 to 3; second defendant failed to prove that mother of the plaintiffs had taken her respective share from the first defendant by way of registered gift deed dated 19.03.986; further held that defendants have failed to prove that suit is bad for non-joinder of necessary parties. Consequently, the trial Court decreed the suit of the plaintiffs holding that the plaintiffs have got a right of 1/7th share each in the suit schedule properties. The defendant No.2 aggrieved by the judgment and decree passed by the trial Court filed R.A.No.26/2010. 9. The first appellate Court has framed the following points for consideration: 1. Whether trial court erred in giving negative finding on issue Nos.4 to 8 regarding oral partition and allotment of separate share to plaintiffs as averred in para-10 of written statement of contesting defendants? 2. Whether trial Court erred in holding that the plaintiffs each have got 1/7th share in the suit schedule properties? 3. Whether the trial court erred in holding that the suit schedule properties are joint family properties of plaintiffs and defendant Nos.1 to 3? 4. 2. Whether trial Court erred in holding that the plaintiffs each have got 1/7th share in the suit schedule properties? 3. Whether the trial court erred in holding that the suit schedule properties are joint family properties of plaintiffs and defendant Nos.1 to 3? 4. Whether the trial court erred in holding that the sale deed executed by the defendant Nos.1 to 3 in favour of defendant Nos.4 to 6 in respect of item No.2 of the suit schedule properties are not binding upon the share of plaintiff? 5. Whether trial court erred in not holding that suit is bad for non-joinder of necessary parties? 6. whether Judgment and decree of the trial Court requires to be interfered? 10. The first appellate Court after re-appreciating the material evidence on record held that the trial Court has not committed any error in granting 1/7th share each to the plaintiffs and affirmed the judgment and decree passed by the trial Court holding that the defendant No.2 has failed to prove the oral partition which took place in the year 1979. Consequently, dismissed the appeal. The defendant No.2 aggrieved by the judgment and decree passed by the Courts below, has filed this second appeal. 11. Heard the learned counsel for the parties. 12. Learned counsel for the appellant submits that though the properties are the ancestral properties, there was an oral partition took place in between the parties to the suit. In the said partition, first plaintiff has taken her share by way of cash of Rs.50,000/-and 80 grams of gold and 50 grams of silver from defendants No.1 to 3. Further he submits that in order to prove the oral partition which took place in the year 1979, DW-4 was examined and the trail Court as well as first appellate Court have committed an error in holding that there was no prior partition. Hence, he submits that the Courts below have erred in decreeing the suit. 13. Per contra, learned counsel for the respondents supports the impugned judgments and decree passed by the Courts below. 14. Perused the records. 15. It is not in dispute that the suit schedule properties are the joint ancestral properties of the parties to the suit. In fact, the defendants have admitted that the suit schedule properties are the joint ancestral properties of the plaintiffs and defendants No.1 to 3. 14. Perused the records. 15. It is not in dispute that the suit schedule properties are the joint ancestral properties of the parties to the suit. In fact, the defendants have admitted that the suit schedule properties are the joint ancestral properties of the plaintiffs and defendants No.1 to 3. It is the case of the defendant No.2 i.e., contesting defendant that there was an oral partition in the year 1979 and in the said partition, first plaintiff has taken her share by way of cash of Rs.50,000/-and 80 grams of gold and 50 grams of silver from defendants No.1 to 3. In order to support the case of the defendant No.2, he got examined himself as DW-1. Except oral evidence of DW-1, the defendants have not produced any records to show that there was oral partition in the year 1979 and even on the basis of the alleged oral partition, no mutation has been effected till today. Further in order to establish the oral partition which took place in the year 1979, defendant No.2 examined one Guruvappa as DW-4. In the cross examination of DW-4, he deposed that himself and village elders were divided the defendants family properties in favour of defendants No.1 to 3 in their presence. He further states that partition took place orally but he was unable to say which properties are allotted to the respective parties. 16. The plaintiffs before filing the suit has got issued a legal notice dated 11.07.2006 calling upon the defendants to effect a partition. The defendants gave a reply dated 25.07.2006 to the said notice as per Ex.P-8. In the said reply notice, it is mentioned that an oral partition took place in the year 1979 and the same was reduced into writing but the defendants have not produced any records or documents to show that a partition was effected in the year 1979 and same was reduced into writing and further no records have been produced to show that based on the said oral partition, mutation has been effected. 17. In order to prove the oral partition, defendants have produced Ex.D-1 i.e., a copy of judgment passed in O.S.No.21/1993 filed against brothers of defendant No.1 and defendant No.1. He contends that in the said suit, the trial Court held that the defendant No.2 is the owner of the land bearing Sy.No.686-A/1 measuring 6 acres 34 guntas. 17. In order to prove the oral partition, defendants have produced Ex.D-1 i.e., a copy of judgment passed in O.S.No.21/1993 filed against brothers of defendant No.1 and defendant No.1. He contends that in the said suit, the trial Court held that the defendant No.2 is the owner of the land bearing Sy.No.686-A/1 measuring 6 acres 34 guntas. The said suit was decreed on 22.02.1999. By going through the Ex.D-1, the defendant No.2 has not stated in the said suit regarding the alleged oral partition which took place in the year 1979 and there is no record about the alleged oral partition. He only contends in the said suit that he is the owner of the suit schedule property without reference to the alleged oral partition. Further, Ex.D-3 is a copy of the judgment in O.S.No.107/2006 filed by the defendant No.2 against the third person for injunction in respect of some other lands. From the perusal of the said judgment also it is seen that the plaintiff in that suit i.e., defendant No.2 has claimed absolute ownership of the said land but he has not pleaded about the alleged oral partition which took place in the year 1979. Except oral evidence of DWs-1 and 4, the defendant No.2 has not placed any records to show that there was a prior partition. 18. The defendant No.4 was examined in order to prove the oral partition, but in fact, as on the date of his evidence, he was aged 50 years but he contends that oral partition took place in his presence and other villagers. In the year 1979, his age was about 20 years. Though he deposed that there were other elder members of the village at the time of oral partition, in fact no elderly person of the villages was examined in order to prove the oral partition. DW-2 was a young boy in the year 1979 and no person would think of calling upon him at the time of partition. Hence, the contention of the DW-4 that he was a person who was present at the time of oral partition, cannot be accepted. DW-2 was a young boy in the year 1979 and no person would think of calling upon him at the time of partition. Hence, the contention of the DW-4 that he was a person who was present at the time of oral partition, cannot be accepted. Hence, the trial Court after considering the oral and documentary evidence on record held that the defendants have failed to prove that there was oral partition in the year 1979 and in the said oral partition, first plaintiff has taken her share by way of cash of Rs.50,000/-and 80 grams of gold and 50 grams of silver from defendants No.1 to 3. 19. The appellant/defendant No.2 has filed an application for production of additional documents i.e., memorandum of partition and a copy of deposition of plaintiff No.5 in O.S.No.28/2010. In the said application, the appellant states that oral partition was reduced into writing on 14.04.2007 i.e., during the pendency of suit. If at all the said document was executed on 14.04.2007, the first defendant was in possession of the document, the first defendant ought to have produced the said document and the same was not produced during the pendency of the suit before the trial Court and even also before the appellate Court. Though DW-1 was examined on 16.10.2008 i.e., after execution of alleged memorandum of partition, DW-1 ought to have deposed about the said document and produced the same during the pendency of the suit. The said document has been created during the pendency of the suit. Further, by going through the reply notice, Ex.P-8, it is seen that defendant No.2 has clearly stated that partition took place on 12.05.1979 and the same was reduced into writing but the defendant No.2 has not produced the said document. If at all the said partition was reduced into writing on 14.04.2007, it ought to have been produced by the defendant No.2 by way of an application for production of additional documents. Moreover, the present appeal is filed in the year 2011 and the appellant has filed this application after lapse of 6½ years. Even on this ground also it creates a doubt in the mind of the Court as to whether this document was executed by the parties to the suit. The appellant/defendant No.2 has not made any ground to allow the application. Even on this ground also it creates a doubt in the mind of the Court as to whether this document was executed by the parties to the suit. The appellant/defendant No.2 has not made any ground to allow the application. Hence, in view of the above facts and circumstances of the case, the application filed by the appellant for production of additional documents is rejected. Consequently, the appeal is also dismissed.