JUDGMENT : 1. RSA No.1327/2017 is filed by the defendant Nos.1 to 6 in OS No.31/2003 challenging the Judgment and Decree dated 16.01.2012 passed by the Senior Civil Judge at Madikeri and the concurring Judgment and Decree of the First Appellate Court in RA No.17/2012 dated 23.03.2017. 2. In this Judgment, the parties shall be referred to as they were arrayed before the Trial Court. 3. A suit for partition and separate possession was filed by the plaintiffs in OS No.31/2003. The facts as stated in the plaint are that Poojari Annaiah and Poojari Chami were brothers. The plaintiff Nos.2 to 4 are the grand children of Poojari Annaiah, while the defendant No.1 was the second wife of Poojari Annaiah and the defendant Nos.2 to 6 were the children from the second wife of Poojari Annaiah. The defendant Nos.7 to 14 were the successors of Poojari Chami. 4. Family tree of the parties is extracted below for easy reference. Poojari Papaiah Poojari Annaiah (died in the year 1978) Poojari Chami (died on 03.10.2002) Lakshmi (1st Wife) Papamma (2nd Wife) D-1 Wife Chellamma (D-7) Maniyamma (daughter) (died on 12.03.1976) Puttamma D-2 Madhuraiah D-8 Raju (husband) P-1 Lokanath D-3 Ammaiah D-9 Kamu D-4 Krishna D-10 Harish P-2 Susheela P-3 Umesh D-5 Savithri D-11 Sathish P-4 Kasthuri D-6 Sathyanarayana D-12 Subramani D-14 5. The plaintiff contended that upon the death of Poojari Annaiah, the plaintiffs, defendant Nos.1 to 6 were succeeded to the half share of Poojari Annaiah. While Poojari Chami is stated to have expired on 03.10.2002 leaving behind the defendant Nos.7 to 14 who have succeeded to his half share in the suit properties. The plaintiffs claim that their attempts to partitioning the suit properties were ignored which prompted them to issue a notice dated 01.01.2003 calling up on the defendant Nos.1 and 7 to 14 to partition and hand over their shares in the suit properties. 6. The defendant Nos.1, 3, 5 and 6 filed their written statement which was adopted by the defendant Nos.2 and 4. The defendants claim that the plaintiffs were not the legal heirs of Poojari Annaiah. They also contended that there was a prior partition in the family and that each sharer was in possession and enjoyment of the properties allotted to their shares. 7. The defendant Nos.8, 10, 14 though they appeared through their counsel, they did not file their written statement. They also contended that there was a prior partition in the family and that each sharer was in possession and enjoyment of the properties allotted to their shares. 7. The defendant Nos.8, 10, 14 though they appeared through their counsel, they did not file their written statement. The defendant Nos.7, 9, 11 to 13 were placed exparte. 8. Based on the above pleadings the Trial Court framed the following issues: “1. Whether the plaintiffs prove that, suit schedule properties are self acquired property of late.Papaiah? 2. Whether the plaintiffs prove the relationship of the parties as mentioned in the plaint? 3. Whether the plaintiffs prove that they are having share in the suit schedule properties? 4. Whether the plaintiffs are entitled for separate possession and enjoyment of their share in the suit property? 5. Whether the plaintiffs are entitled for the mesne profits? 6. Whether the plaintiffs are entitled for the relief as prayed for? 7. What Order or decree? Addl.issues:- 1. Whether the plaintiffs prove that one Maniamma @ Mani is the daughter of Poojari Annaiah?” 9. The plaintiff No.1 was examined as PW1 and examined three other witnesses and they marked Exs.P1 to P21. While the defendant No.3 was examined as DW1 and a witness was examined as DW2 and they marked Exs.D1 to D6. 10. The Trial Court, based on the evidence on record noticed the contention of the plaintiffs that the suit properties were the ancestral properties of Poojari Annaiah and Poojari Chami and that there was no partition between them. The Trial Court therefore, in terms of the Judgment and Decree dated 16.01.2012, decreed the suit in part and declared that the plaintiff is entitled to half share out of the half share of Poojari Annaiah in the suit properties. 11. The defendant Nos.1 to 6 being the uncles and aunts of the plaintiff Nos.2 to 4 filed RA No.17/2012 which was disposed off by the First Appellate Court declaring that the plaintiff Nos.2 to 4 were jointly entitled to 1/12th share and the defendant Nos.2 to 6 are entitled to 1/12th share each in the suit schedule properties. On the other hand the defendant Nos.7 to 14 were entitled to half share of the properties that belong to Poojari Chami. 12. On the other hand the defendant Nos.7 to 14 were entitled to half share of the properties that belong to Poojari Chami. 12. Being aggrieved by the Judgment and Decree of the Trial Court and the First Appellate Court the defendant Nos.1 to 6 have filed this Regular Second Appeal. 13. I have heard the counsel for the appellants / defendant Nos.1 to 6, plaintiffs / respondent Nos. 1 to 4 and the other defendants. I have perused the Judgment and Decree of the Trial Court and the First Appellate Court and also noticed the grounds urged in the appeal memorandum. 14. It is not in dispute that the suit properties were the ancestral properties in the hands of Poojari Annaiah and Poojari Chami. It is also not in dispute that the plaintiffs and the defendants are the heirs of Poojari Annaiah and Poojari Chami. The only noticeable defence was that there was a prior partition, in terms of which the properties were partitioned and that the respective parties were in possession. In order to buttress the contention of the defendants that there was a prior partition, they relied upon the admission of PWs.1 and 3, where they admitted that there was a prior partition between Poojari Annaiah and Poojari Chami. The defendants therefore contended that the subsequent suit for partition was not maintainable in view of the evidence that there was a prior partition between Poojari Annaiah and Poojari Chami. 15. The dispute in controversy is not relating to the partition between Poojari Annaiah and Poojari Chami but is necessarily a dispute between the heirs of Poojari Annaiah. Though PWs.1 and 3 were admitted that there was a prior partition, yet the defendants have not proved as to which property fell to the share of Poojari annaiah and Poojari Chami. The Trial Court and the First Appellate Court therefore constrained to hold that the plaintiffs are entitled for a share in the suit properties. 16. The Trial Court initially decreed the suit and declared that the plaintiff Nos.2 to 4 are entitled to 1/4th share in the suit properties while the defendant Nos.1 to 6 are entitled to the other 1/4th share and the defendant Nos.7 to 14 were entitled to 1/2 share in the suit schedule properties. 16. The Trial Court initially decreed the suit and declared that the plaintiff Nos.2 to 4 are entitled to 1/4th share in the suit properties while the defendant Nos.1 to 6 are entitled to the other 1/4th share and the defendant Nos.7 to 14 were entitled to 1/2 share in the suit schedule properties. In the appeal filed by the defendant Nos.1 to 6 in RA No.17/2012, the First Appellate Court exercised power under Order 41 Rule 33 of Code of Civil Procedure, 1908 and modified the Judgment and Decree and declared that the plaintiff Nos.2 to 4 are entitled to 1/12th share and the defendant Nos.2 to 6 are each entitled to 1/12th share in the suit schedule properties. In so far as the defendant Nos.7 to 14 is concerned, the First Appellate Court held that they were claiming through Poojari Chami and therefore, they were together entitled to 1/2 share in the suit schedule properties. 17. On perusal of the Judgment and Decree of the First Appellate Court, I do not find any error committed by the First Appellate Court in modifying the Judgment and Decree of the Trial Court and declaring that the plaintiffs are entitled to 1/12th share in the suit properties. This finding being essentially a finding of fact, no substantial question of law arises for consideration. Hence, this appeal is dismissed. 18. In view of dismissal of RSA No.1327/2017, the appeal filed by the plaintiffs in RSA No.851/2017 challenging the per capita allotment of shares to the plaintiff Nos.2 to 4 and the defendant Nos.2 to 6 is not maintainable as the plaintiff Nos.2 to 4 were the children of Maniyamma, daughter of Lakshmi, while the defendant Nos.2 to 6 are also the children of Poojari Annaiah from the second wife Papamma. The First Appellate Court has rightly applied the law as it relates to per capita allotment of shares in respect of Poojari Annaiah. I do not find any infirmity in the Judgment and Decree passed by the First Appellate Court. Accordingly, both the appeals are dismissed.