JUDGMENT : RAVI V. HOSMANI, J. 1. Challenging the judgment and decree dated 21.11.2014 passed by the Senior Civil Judge and JMFC, Raibag, in R.A. Nos. 24/2011 and 25/2011 and the judgment and decree dated 15.09.2011 passed by the Additional Civil Judge and JMFC, Raibag in O.S. No. 76/2006 these two appeals are filed. The appellant in RSA No. 100007/2015 was the plaintiff in O.S. No. 76/2006 and appellant in R.A. No. 24/2011. The respondent Nos. 1 to 12 herein were defendants 1 to 12 respectively before the trial Court and respondents 1 to 12 respectively before 1st appellate Court. 2. The appellant in RSA No. 100251/2015 was defendant No. 3 before the trial Court and respondent No. 3 in R.A. No. 25/2011. For the sake of convenience, the parties will hereinafter be referred to as per their respective ranks before the trial Court. 3. Brief facts leading to these appeals are that, Sri. Bhimappa s/o Mallappa Tuppad filed O.S. No. 76/2006 against defendants for relief of partition and separate possession of his ¼ share in suit schedule 'A' properties etc., 4. In the plaint, he stated that defendants were his brothers and they constituted a Hindu Undivided Joint Family. It was stated that suit properties were their ancestral properties and were in their actual joint possession and enjoyment. It was further stated that though plaintiff and defendants maintained separate hearths, they continued to be part of joint family. After death of Mallappa, names of plaintiffs and defendants were jointly entered in record of rights of suit schedule 'A' properties. It was further stated that was no partition of joint family properties until filing of suit and as there were difference of opinion, plaintiff requested defendants for partition of joint family properties, which was refused. Hence, he filed the suit. 5. It was also asserted that land bearing R.S. No. 46/1+2+3A/B measuring 12 acres 17 guntas situated at Palabhavi village (which was Item no. 3 in Suit Schedule 'A' properties and hereinafter referred to as 'Item no. 3' for short) was inherited by Sri. Siddagiri Mallappa Tuppad from his grandfather's younger brother, which was also joint family property. However, defendant No. 1 was illegally claiming it to be gifted to him alone by Siddagiri Mallappa, under alleged created gift deed dated 09.07.1956. 3 in Suit Schedule 'A' properties and hereinafter referred to as 'Item no. 3' for short) was inherited by Sri. Siddagiri Mallappa Tuppad from his grandfather's younger brother, which was also joint family property. However, defendant No. 1 was illegally claiming it to be gifted to him alone by Siddagiri Mallappa, under alleged created gift deed dated 09.07.1956. It was alternatively stated that even if said gift deed were to be held valid, it's donor intended it to be for entire joint family of plaintiff and defendant Nos. 1 to 3 and was nominally gifted in the name of defendant no. 1 as he was eldest male member and Karta of joint family. This fact is evidenced by the fact that during 1982, defendant No. 1 willingly got names of his brothers entered along with him in revenue records. Same is reflected in M.E. No. 2151. As defendant No. 1 had unequivocally merged this property with common hotchpotch of joint family, defendant No. 1 was estopped from claiming it as his exclusive property. 6. On service of suit summons, defendants No. 2, 4 to 12 remained absent and were placed ex parte. Defendant No. 1 entered appearance and contested the suit by filling written statement. In his written statement, defendant No. 1 admitted relationship between parties. It was also admitted that suit properties were ancestral. But defendant No. 1 specifically denied that suit property was ancestral joint family property of plaintiff and defendants. It was specifically asserted that it was his self-acquired property as Sri. Siddagiri Mallappa Tuppad, it's earlier owner had gifted it to him exclusively under registered gift deed dated 09.07.1956. It was also contended that propositus Mallappa Tuppad had got two sons and four daughters who were not impleaded as parties to the suit and therefore, suit for partition without impleading all members of joint family was bad for non-joinder. It was further contended that agricultural lands bearing R.S. No. 69/1B and 155/2B situated at Siraguppi village, Jamakhandi taluk and house properties bearing Nos. 216 and 446 of Palabhavi village, Raibag taluk were also ancestral properties, which were not included in suit and therefore suit was liable for dismissal. 7. During its pendency, plaint came to be amended. Defendant No. 1 filed additional written statement stating that item no. 3 land was earlier owned by Siddagiri Mallappa Tuppad. 216 and 446 of Palabhavi village, Raibag taluk were also ancestral properties, which were not included in suit and therefore suit was liable for dismissal. 7. During its pendency, plaint came to be amended. Defendant No. 1 filed additional written statement stating that item no. 3 land was earlier owned by Siddagiri Mallappa Tuppad. However, as Siddagiri Mallappa did not have any legal heirs, he gifted the same in favour of defendant No. 1 under registered gift deed dated 09.07.1956. 8. Defendant No. 3 filed separate written statement and additional written statement virtually admitting plaintiff's case. It was stated that Siddagireppa could not have gifted entire extent of item no. 3 land in favour of defendant No. 1. Even if gift deed were valid, it was for the benefit of entire family as evidenced by M.E. No. 2151/1982 where under names of plaintiff and defendant Nos. 1 to 3 were mutated in respect of said land. Since then plaintiff was in joint possession and enjoyment of all the suit properties including said land. There was no partition by metes and bounds in suit properties and as difference of opinion arose between member of joint family, defendant No. 3 sought for a decree of partition granting 1/4th share to plaintiff. 9. On basis of pleadings, trial Court framed following issues: 1. Whether the plaintiff proves that, he is member of joint family consisting of plaintiff and defendants? 2. Whether the defendants are proves that, suit property bearing R.S. No. 46/1+1+2+3A/B is self-acquired property of defendant No. 1 by way of gift-deed? 3. Whether defendants prove that, suit of plaintiff is bad for non-joinder of necessary parties? 4. Whether defendants prove that, plaintiff not brought all the family properties in one hotch pot for partition? 5. What the plaintiff is proves that, he is having share in the suit property? 6. Whether plaintiff is entitled for partition and separate possession as sought for? 7. What decree or order? 10. In support of his case, plaintiff got himself examined as PW1 and three more witness as PW2, PW3 and PW4 respectively. Exs. P1 to P30 were marked. On behalf of defendants, two witnesses were examined as DW1 and DW2 and Exs. D1 to D37 were marked. 11. On consideration, trial Court answered Issue Nos. 1, 5 and 6 in the 'Negative', Issue No. 2 in the 'Affirmative', issue Nos. Exs. P1 to P30 were marked. On behalf of defendants, two witnesses were examined as DW1 and DW2 and Exs. D1 to D37 were marked. 11. On consideration, trial Court answered Issue Nos. 1, 5 and 6 in the 'Negative', Issue No. 2 in the 'Affirmative', issue Nos. 3 and 4 as 'not surviving for consideration' and Issue No. 7 by dismissing the suit'. 12. Aggrieved, plaintiff filed R.A. No. 24/2011, while Defendant No. 3 filed R.A. No. 25/2011. 13. Based on contentions urged, first appellate Court framed following points for its consideration: 1. Whether the trial Court has erred in holding that, there is severance of status among the plaintiff and defendants in all ancestral properties except the property at Sl. No. 3 of plaint? 2. Whether the trial Court erred in holding that, the alienation by PW1, defendant No. 2 and 3 are not entitled under law to sale their undivided share? 3. Whether the trial court erred in holding that, the land R.S. No. 46/2/1+2+3A/B in self-acquired property of defendant No. 1? 4. Whether the trial court has erred in not considering the revenue records? 5. Whether the trial court has not properly appreciated the oral and documentary evidence of the parties? 6. Whether the judgment and decree of the trial court is perverse and illegal? 7. Whether the judgment and decree under appeals needs modification at the hands of this Court? 8. What order? 14. On consideration, point Nos. 1 to 7 were answered in the 'Negative' and point No. 8 by dismissing both the appeals. 15. Aggrieved by dismissal of their respective appeals, plaintiff and defendant No. 3 have filed these two appeals separately as stated above. 16. RSA No. 100007/2015 was admitted on 20.04.2016, to consider following substantial questions of law: 1. Whether the trial Court was correct in dismissing the suit having noted the contention of defendant No. 1 that except property at Sl. No. 3, rest other properties were ancestral in nature? 2. Whether the lower appellate Court was right in confirming the dismissal of the suit without there being an issue with regard to nature of coparceners and eligibility of coparceners? 17. RSA No. 100251/2015 was admitted on 16.03.2020 to consider the same substantial questions of law. 18. Sri. Sriharsh A. Neelopant, learned counsel for appellant in RSA 100007/2015, submitted that this appeal is by plaintiff. 17. RSA No. 100251/2015 was admitted on 16.03.2020 to consider the same substantial questions of law. 18. Sri. Sriharsh A. Neelopant, learned counsel for appellant in RSA 100007/2015, submitted that this appeal is by plaintiff. Plaintiff's suit was for partition and separation of his 1/4th share in joint family properties. Joint family properties consisted of 12 immovable properties mentioned in schedule 'A'. Out of same, item Nos. 2 and 11 are house properties, remaining are agricultural lands. Trial Court dismissed the suit. Appeal filed by plaintiff is also dismissed. Hence this second appeal. This appeal was admitted on 20.04.2016 to consider the substantial questions of law regarding the nature of coparcenary and legality of dismissal of plaintiff's suit and appeal. It was submitted that main reason assigned by trial Court for dismissal of plaintiff's suit was the finding that there was prior partition, based merely on mutation entries, contrary to the decisions of this Court in the case of Hanumanth Bheemappa Sanadi Vs. Rudrappa Thammanna Sanadi reported in ILR 2005 KAR 3430 and RSA No. 100004/2015 in the case of Smt. Chamanbi & Ors. Vs. Batulabi & Ors. disposed of on 15.03.2018-and the Hon'ble Supreme Court in the case of Bharat Singh & Ors. Vs. Mst. Bhagirathi reported in AIR 1966 SC 405 . 19. It was further contended that the finding regarding prior partition was given even though no such contention was taken in written statement and no issue was framed. In written statement, the only defence taken by defendants was that suit schedule properties were self-acquired properties of defendant no. 1 and non-joinder of necessary parties. It was submitted that it was impermissible for a Court to give a finding without pleading and without framing issue as held by the Hon'ble High Court of Allahabad in the case of Smt. Kaniz Fatima and another Vs. Sha Naim Ashra reported in AIR 1983 Allahabad 450. 20. Relying upon the decision in the case of Vasant Balu Patil & Ors. Vs. Mohan Hirachand Shah & Ors. reported in 2016 (1) SCC 530 , it was contended that an amendment to plaint would relate back to the date of the suit. In the instant case, after filing of written statement, plaint was amended and additional parties were added and even suit schedule was amended to include properties contended to have been left out. reported in 2016 (1) SCC 530 , it was contended that an amendment to plaint would relate back to the date of the suit. In the instant case, after filing of written statement, plaint was amended and additional parties were added and even suit schedule was amended to include properties contended to have been left out. Hence, objection regarding non-inclusion of all joint family properties and non-impleading of all members of joint family stood discharged. The only surviving contention was regarding nature of properties whether undivided joint family properties or self-acquired properties of defendant No. 1. However, trial Court dismissed the suit on its finding regarding prior partition alone. Even Appellate Court on a cursorily dismissed the Appeal without re-appreciation of evidence and findings, which was unsustainable in view of decision of Hon'ble Supreme Court in the case of C. Venkata Swamy Vs. H.N. Shivanna (dead) by LRs. & Anr. reported in (2018) 1 SCC 604 . Therefore, trial Court as well as Appellate Court committed substantial error of procedure, giving rise to substantial question of law. It was submitted that plaintiff produced ample evidence regarding merger of suit schedule property by defendant No. 1 into common hotch-pot of joint family, by marking mutation varadis supported by oral evidence. Learned Counsel relied upon the decisions of the Hon'ble Supreme Court in the case of Malleppa Bandeppa Desai and another Vs. Desai Mallappa Alias Maleppa and Anr. reported in AIR 1961 SC 1268 ; Goli Eshwaraiah Vs. Commissioner of Gift Tax, Andhra Pradesh reported in AIR 1970 SC 1722 ; K.V. Narayan Vs. K.V. Ranganadhan reported in : AIR 1976 SC 1715 ; Subramanian Vs. Ramasamy reported in 2019 (6) SCC 46 and the decision of this Court in the case of Gopal Purushotham Bichu Vs. Purushotham Govind Bichu reported in ILR 1989 KAR 169. 21. It was submitted that even without any enquiry, trial Court decided Issue no. 2. The reason was that mere mutation entries do not either create or extinguish rights of parties and any conveyance of immovable property required registration, which was contrary to law laid down by Hon'ble Supreme Court in the case of Goli Eshwaraiah Vs. Commissioner of Gift Tax reported in AIR 1970 SC 1722 . 22. It was further submitted that trial Court after coming to conclusion that all other properties, except item no. Commissioner of Gift Tax reported in AIR 1970 SC 1722 . 22. It was further submitted that trial Court after coming to conclusion that all other properties, except item no. 3 of suit schedule 'A' properties, were joint family properties, could not have dismissed plaintiff's suit in entirety. It was also contended that it was not only the intention of the donor to give Item no. 3 land to all the joint family members, but also such bequethal could not be legally made only in favour of defendant no. 1 alone and referred to the decision of the Hon'ble Supreme Court in the case of T Venkata Subbamma Vs. T. Rattamma reported in AIR 1987 SC 1775 , wherein it is held that renunciation or relinquishment of his share in joint family property by a member in favour of another, can only endures to all the members. On the above grounds, learned counsel sought for allowing the Appeal and decreeing of plaintiff's suit. 23. On the other hand, Sri. Anand R. Kolli, learned counsel for defendant no. 1/respondent no. 2 submitted that it is not disputed that plaintiff and defendants belonged to same family and that original propositus Mallappa had two sons Channabasappa and Siddagireppa. Channabasappa had five sons viz., Mallappa, Basavanneppa, Gireppa, Channappa and Gurupadappa. Both the Plaintiff and defendants hail from branch of Mallappa s/o Channabasappa. Said Mallappa had eight children viz., Dundappa-defendant No. 1, Kallappa-defendant, No. 2, Bheemappa-plaintiff, Arjun-defendant No. 3, Gangaram-defendant No. 4, Neelawwa-defendant No. 5, Basawwa-defendant No. 6 and Shantawwa-since dead by LRs-defendant No. 7 to 12. 24. It was submitted that during lifetime of propositus Mallappa, partition was effected between his sons i.e. Channabasappa and Siddagireppa, wherein Siddagireppa got item no. 3 land. Hence, he was absolute owner of said land. As he did not have any issues, he gifted this land to Dundappa-defendant no. 1, as per Ex. D.6. In pursuance of gift, name of defendant no. 1 alone was mutated in revenue records as per Ex. D7 and he was in actual possession and cultivation of the same. It was also submitted that there was no recital in Ex. D6, that it was for and on behalf of joint family. And except relying upon M.E. No. 2151, no other evidence was led to establish said contention. It was contented that mere mutation entries cannot prevail over documents of title. 25. It was also submitted that there was no recital in Ex. D6, that it was for and on behalf of joint family. And except relying upon M.E. No. 2151, no other evidence was led to establish said contention. It was contented that mere mutation entries cannot prevail over documents of title. 25. It was further submitted that during lifetime of Mallappa i.e., father of plaintiff and defendants no. 1 to 3, there was partition between them, allotting separate shares to each of them. Even revenue entries were mutated showing names of respective allottees against lands allotted to their share, as per Ex. D.17, certified on 10.12.1964. It was submitted that item no. 3 land was not included in said partition, as it was gifted to defendant no. 1 exclusively and it was his self-acquired property. 26. It was submitted that though there is no specific issue regarding prior partition, however, parties had proceeded on that basis and led evidence and the same cannot be a ground of challenge in Appeal. Trial Court was also justified in giving finding regarding prior partition, in view of Issue no. 6 read with Issues no. 1, 2 and 5. 27. Insofar as finding of trial Court that except property mentioned in Sl. No. 3 of plaint schedule, all other properties are ancestral properties of plaintiff and defendants, it was submitted that said finding cannot be read in isolation without referring to explanation contained in the very same paragraph and findings on other issues. It was submitted that after holding item no. 3 was self-acquired property of defendant No. 1, plaintiff's claim for partition in it is rejected. In respect of other properties, trial Court while giving finding on Issues no. 5 and 6, held that defendants established that there was partition among children of Mallappa and therefore question of subjecting them to partition again does not arise. In light of said reasoning, contention of appellant does not avail much to plaintiff-appellant. 28. It was further submitted that during lifetime of Mallappa, plaintiff and defendants had begun residing separately and cultivating properties fallen to their respective shares. In fact, some properties which were sold by plaintiff and by defendants prior to suit were not included. Such conduct clearly indicated severance of joint family of plaintiff and defendants either under a oral partition or by viewing same as family arrangement. In fact, some properties which were sold by plaintiff and by defendants prior to suit were not included. Such conduct clearly indicated severance of joint family of plaintiff and defendants either under a oral partition or by viewing same as family arrangement. In either case, plaintiffs are not entitled to any relief. Trial Court as well as Appellate Court on appreciation and re-appreciation of evidence on record had come to proper conclusion. The findings are therefore justified in law and no interference is called for. 29. It was further contended that finding regarding prior partition is a question of fact decided by trial Court after examining evidence on record and said finding of fact has been confirmed by First Appellate Court on re-appreciation of entire material on record. Thus, finding of fact is concurrent against plaintiff-appellant and same does not call for any interference in this appeal. In support of his contentions learned counsel relied upon following decisions: 1. (2019) 10 SCC 259 -Prahlad Pradhan & Ors. Vs. Sonu Kumhar & Ors. 2. 2016 AIAR (Civil) 216-Prem Nath Khanna & Ors. Vs. Narinder Nath Kapoor (Dead) Through LRs. & Ors. reported in 2016 (12) SCC 235 . 3. Civil Appeal No. 7528/2019-Govindbhai Chhotabhai Patel & Ors. Vs. Patel Ramanbhai Mathurbhai reported in 2020 (16) SCC 255 . 4. 2016 AIAR (Civil) 320-Uttam Vs. Saubhag Singh & Ors. reported in 2016 (4) SCC 68 . 5. 2016 AIAR (Civil) 122-Damodar Lal Vs. Sohan Devi & Ors. reported in 2016 (3) SCC 78 . 30. Sri. Mallikarjun S. Hiremath, learned counsel for appellant appearing in R.S.A. No. 100251/2015 submitted that appellant was defendant No. 3 in suit. Defendant No. 3 filed written statement and additional written statement supporting plaintiff's case. Assailing impugned judgment and decree passed by First Appellate Court, it was submitted that as there was no pleading by defendants, no issue was framed regarding prior partition. However, trial Court has given finding without pleading and without framing issue. It was also submitted that after amendment of plaint by adding plaint para-3(a), it was alternatively contented that even if validity of gift deed be held against plaintiff, gifted property be held to be brought into common hotch-pot by donee as intended by donor. However, there was no consideration of this aspect by trial Court. This contention was supported by mutation entry-Ex. P.13. However, there was no consideration of this aspect by trial Court. This contention was supported by mutation entry-Ex. P.13. This entry certified on 04.01.1982, was not challenged by defendant No. 1. His only explanation is that it was got certified by manipulating his signature, which was not established by leading cogent evidence. It was submitted that defendant No. 1 had infact challenged M.E. No. 2151 before Assistant Commissioner, which was dismissed and confirmed in revision by Deputy Commissioner, as per Ex. P.27. Therefore, defendant No. 1 cannot overcome the consequences of such mutation entry by merely disputing his signature on the Varadi. Hence reason assigned by trial Court that it was not plaintiff's case that there was blending of self-acquired properties of defendant No. 1 into joint family properties, was contrary to material on record. Learned counsel submitted that the essential factors for attracting doctrine of blending, were duly established by plaintiff. On the said ground, learned counsel sought for allowing appeal setting aside judgment and decree passed by trial Court as well as Appellate Court and for decreeing the suit. 31. Heard learned counsel, perused impugned judgment and decree and record. 32. From the above, it is seen plaintiff has filed this suit claim for partition of his 1/4th share in suit schedule 'A' joint family properties by stating that plaintiff and defendants constitute a Hindu undivided joint family. The relationship between parties is not in dispute. It is also not in dispute that except item no. 3 all other suit schedule 'A' properties were ancestral properties. But, as it is asserted by defendant No. 1 that because of prior partition, the properties which were ancestral properties were now individual properties and there was no scope for partition. In respect of item no. 3 land, it is specifically asserted that it was self-acquired property. Therefore, the dispute in this case is about existence of joint family status and whether all the suit schedule properties are joint family properties. The suit claim is based on following assertions by the plaintiff: a) Plaintiff asserts that there was no partition between Channabasappa and Siddagireppa in joint family properties owned by their father Mallappa, the original propositus. Plaintiff contends that item no. 3 land, was previously ancestral property. Siddagireppa was part of joint family with Channabasappa. Therefore, without consent of Channabasappa, he could not have gifted the land to defendant No. 1-Dundappa. Plaintiff contends that item no. 3 land, was previously ancestral property. Siddagireppa was part of joint family with Channabasappa. Therefore, without consent of Channabasappa, he could not have gifted the land to defendant No. 1-Dundappa. b) Alternatively, plaintiff contends that even if gift deed were held valid, it be held to be in favour of plaintiff and defendants together, as per intention of donor. c) It is also contended that defendant No. 1 had voluntarily merged item no. 3 land into common hotch-pot, hence it was available for partition. The evidence on record is as follows: PW-1 in his examination-in-chief reiterates plaint averments and marks exhibits. Exs. P.1 to P.10 are Record of Rights in respect of agricultural lands in suit schedule 'A'. Exs. P.11 & P.12 are Form-9-property tax demand register extracts in respect of two house properties in suit schedule 'A'. Ex. P.13 is M.E. No. 2151 dated 04.01.1982 in respect of item no. 3 land. Ex. P.14 is the order dated 23.12.2006 passed by Assistant Commissioner dismissing the appeal of defendant No. 1 against M.E. No. 2151. Exs. P.15 to P.23 are the receipts for having paid land revenue. Ex. P.24 is the work order sanctioning installation of 5 HP pump in favour of Arjun Mallappa Tuppad. Ex. P.25 is receipt for having paid land revenue. Ex. P.26 is M.E. No. 2158 for mutating names of legal representatives of deceased Mallappa S/o. Channabasappa. Ex. P.27 is the order dated 13.01.2010 passed by Deputy Commissioner dismissing revision filed against order of Assistant Commissioner Ex. P.14. Ex. P.28 is the copy of revision petition. Ex. P.29 is the receipt for having paid water charges to Water User's Cooperative Society in respect of item no. 3 land. Ex. P.30 is the No-Due Certificate issued by Water User's Cooperative Society. During cross-examination of PW-1, it is elicited that in year 1964, there was partition between father of PW-1 and his brothers and thereafter they were living separately. It is further elicited that item no. 3 land belonged to Siddagireppa; that PW-1 does not know from whom Siddagireppa got it. A suggestion that it was granted to Siddagireppa is answered as 'not within knowledge'. PW-1 admits Siddagireppa executing registered gift deed during 1956 in favour of defendant No. 1-Dundappa. It is also elicited that in partition of 1964, item no. 3 land belonged to Siddagireppa; that PW-1 does not know from whom Siddagireppa got it. A suggestion that it was granted to Siddagireppa is answered as 'not within knowledge'. PW-1 admits Siddagireppa executing registered gift deed during 1956 in favour of defendant No. 1-Dundappa. It is also elicited that in partition of 1964, item no. 3 land was not included and further that PW-1 himself is paying land revenue in respect of lands fallen to his share and defendant No. 1 is paying land revenue in respect of lands fallen to his share. PW-1 admits that house No. 448 of Palabhavi village had fallen to his share which stood in the name of his wife and further that house No. 449 stands in the name of defendant No. 1. House No. 457 in Siraguppi Village stands in the name of defendant No. 2. Apart from the above, PW-1 further admits that these three houses are not included in suit claim. PW-1 admits that he had already sold land bearing Sy. No. 20/2 measuring 3 Acres 14 Guntas in favour of Lakshman Channappa Tuppad. 33. In addition, Sri. Maruti Dundappa Kesargoppa, one of residents of Palabhavi village is examined as PW-2. He stated that he knows plaintiff and defendants. In his affidavit evidence he states that suit schedule properties are ancestral properties of plaintiff and defendants and that they are jointly in possession and cultivation of same and no partition was effected between them. But, during cross-examination, PW-2 admits that he is not aware of details of land owned by plaintiff and defendants and that he does not know how many brothers Mallappa had. It is elicited that plaintiff and defendants partitioned ancestral properties, were in possession of their respective shares, managing them independently and residing separately. PW-3 and PW-4 are also residents of Palabhavi village. Their deposition is similar to PW-2. 34. On the other hand, on behalf of defendant, his son is authorized by executing power of attorney and got examined as DW-1. In his examination-in-chief, DW-1 denies all assertions of plaintiff, and exhibits are marked. Ex. D.1 is the power of attorney issued by defendant No. 1 to DW-1 depose on his behalf. Exs. D.2 and D.4 are village Form No. 7 in respect of item no. 3 land, while Exs. D.3 and D.5 are village Form Nos. 7, 7A & 12. Ex. Ex. D.1 is the power of attorney issued by defendant No. 1 to DW-1 depose on his behalf. Exs. D.2 and D.4 are village Form No. 7 in respect of item no. 3 land, while Exs. D.3 and D.5 are village Form Nos. 7, 7A & 12. Ex. D.6 is certified copy of gift deed dated 09.07.1956. Ex. D.7 is M.E. No. 929, entering name of Defendant no. 1 in respect of item no. 3 land. Ex. D.8 is record of rights for the year 2005-06. Ex. D.9 is M.E. No. 2151, entering names of brothers of defendant No. 1 along with him in respect of item no. 3 land. Ex. D.10 is M.E. No. 2158 mutating name of legal representatives of deceased Mallappa excluding item no. 3 land. Exs. D.11, D.12, D.13, 15 and 16 are Form-9-property tax demand register extracts in respect of house properties No. 216, 447, 448, 449 and 457 respectively. Ex. D.14 is the extract of proceedings of Grama Sabha approving mutation of name of wife of defendant No. 1 in respect of house property No. 448. Ex. D.17 is M.E. No. 1090 mutating names of children of Mallappa in respect of land allotted to their shares as per oral partition. Ex. D.18 is certified copy of sale deed dated 01.08.2007 executed by plaintiff for alienating his 1/4th undivided share in Sy. No. 20/2 and R.S. No. 66/3 in favour of Lakshman Channappa Tuppad. Ex. D.19, 20 & 21 are record of rights. Ex. D.22 to 28 are receipts for having paid land revenue. Ex. D.29 & 30 are HESCOM bills for consumption of electricity. 35. In cross-examination, DW-1 admits lineage of plaintiff and defendants from propositus Mallappa. However, suggestions that defendant No. 1 was managing the affairs of joint family, that no partition had taken place between children of Mallappa and all suit schedule properties are standing in joint name of parties are denied. DW-1 specifically asserts that except item no. 3 land remaining were ancestral lands. Suggestions about plaintiff cultivating only a portion of Sy. No. 46, installing pump-set and pipeline with regard to portion of it and growing sugar cane etc., are denied. Suggestion that land was ancestral property of Siddagireppa is also denied. A suggestion that said land was gifted by Siddagireppa to plaintiff and defendants, in name of first defendant is denied. Suggestions about plaintiff cultivating only a portion of Sy. No. 46, installing pump-set and pipeline with regard to portion of it and growing sugar cane etc., are denied. Suggestion that land was ancestral property of Siddagireppa is also denied. A suggestion that said land was gifted by Siddagireppa to plaintiff and defendants, in name of first defendant is denied. DW-1 admits suggestion that he was not born when gift deed was executed in the year 1956. A further suggestion that because of above, he does not know the purpose of gift is denied. Suggestions regarding mutation being certified in terms of voluntary relinquishment by defendant No. 1 and since 1956 land bearing Sy. No. 46 is in joint possession are also denied. 36. During cross-examination of defendant No. 1 by defendant No. 3, it is suggested that there was no partition effected between children of original propositus Mallappa and no documents are produced to indicate partition between Channabasappa and Siddagireppa and also between sons of Mallappa are denied. In response to a suggestion, DW-1 states that defendant No. 1 was aged about 19 to 20 years at the time of execution of gift deed. Suggestion that gift was made for benefit of all children of Mallappa is denied. Further suggestion regarding no prior partition took place, that plaintiff and defendants are in joint possession and in enjoyment of suit schedule properties, that defendant No. 3 got dug an open well and installed pump-set and pipe line and was growing sugarcane in a portion of land bearing R.S. No. 46 are denied. 37. Defendant No. 3 examined as DW-2, deposed in support of the plaintiff. Exs. D.31 to D.37 are marked on his behalf. Ex. D.31 to D.33 are school admission certificates in respect of defendant No. 1, plaintiff and defendant No. 3. Ex. D.35 is certificate issued by PCARD Bank. Ex. D.36 is document for having dug bore-well and Ex. D.37 is sanction issued by HESCOM for electricity connection to pump-set. Suggestions to the effect that gift by Siddagireppa is exclusively in favour of defendant no. 1, that he alone is in possession and cultivation of it are denied. 38. But, in his cross-examination, DW-2 admits that the five sons of Channabasappa namely Mallappa, Basavanneppa, Giriappa, Channappa and Gurupadappa are residing separately after partition. 39. Suggestions to the effect that gift by Siddagireppa is exclusively in favour of defendant no. 1, that he alone is in possession and cultivation of it are denied. 38. But, in his cross-examination, DW-2 admits that the five sons of Channabasappa namely Mallappa, Basavanneppa, Giriappa, Channappa and Gurupadappa are residing separately after partition. 39. While deciding issue No. 1, regarding plaintiff and defendants constituting a joint family, trial Court has taken note of admission about lineage of family of plaintiff and defendants. It notes admission by defendant No. 1 that except item no. 3 land which he claims to be his self-acquired property in terms of gift deed executed by Siddagireppa as per Ex. D.6, all other properties are ancestral properties. It also notes specific admission elicited during cross-examination of PW-1 that during 1964, there was partition between father of PW-1 and his brothers and since then they are residing separately, which is admitted by defendant No. 3 also during his cross-examination as DW-2. Considering the said admissions in the light of mutation entry-Ex. D.17 and tax paid receipts produced by respective parties, trial Court concluded that there was prior partition among children of Mallappa s/o Channabasappa. It also referred to recitals of Ex. D.18 executed by plaintiff in favour of third party for alienating his share in R.S. No. 20/2 and R.S. No. 66/3 without obtaining consent of other members of alleged joint family, as indicating either prior partition or family settlement between plaintiff and defendants. Therefore, it concluded that plaintiff failed to establish that he is a member of joint family consisting of plaintiff and defendants and answered issue No. 1 in negative. Referring to this finding, even issue Nos. 5 and 6 were also negatived. In fact, the main reason for dismissal of the suit is the finding regarding prior partition. 40. The first substantial question of law revolves around this issue. It has been vehemently contended by the appellants that the trial Court committed a grave error in giving finding regarding prior partition even though, prior partition was not pleaded by the defendants nor any issue framed about the same. A bare perusal of issue Nos. 1, 5 and 6 would indicate that the main dispute between the parties was existence of joint family status between the parties as on the date of suit and also whether the suit schedule were joint family properties. A bare perusal of issue Nos. 1, 5 and 6 would indicate that the main dispute between the parties was existence of joint family status between the parties as on the date of suit and also whether the suit schedule were joint family properties. It is seen that while leading evidence, both the parties have clearly understood the issue in controversy. Though it is contended that it was impermissible for trial Court to give a finding without framing issue and in absence of pleading, having regard to the fact that the parties understood the controversy and led evidence comprehensively, as held by the Hon'ble Supreme Court in the case of Nedunuri Kameswaramma Vs. Sampathi Subba Rao reported in AIR 1963 SC 884 mere non-framing of issue would not be a substantial error. 41. The next issue to be decided would be the validity of the finding regarding prior partition as it has been strenuously argued that the finding is based only on reference to mutation entries. However, perusal of impugned judgment passed by trial Court reveals that the said finding is arrived at not only by reference to mutation entries, but also clear admissions given by PW-1 and DW-2 (defendant no. 3) that after partition of the year 1964, the parties were residing separately, managing the properties independently, and paying land revenue separately. The admission of prior partition by PW-1 as well as DW-2 is unequivocal. Hence the trial Court was fully justified in rejecting the plaintiff's claim for partition in respect of all other suit schedule 'A' properties, other than item no. 3. Rejection of plaintiff's claim in respect of item no. 3 land is on different reasoning. Indeed, the law laid down by this Court in Hanumanth Bheemappa Sanadi's case and Smt. Chamanbi's case as also that of the Hon'ble Supreme Court in Bharath Singh's case is undeniable. But trial Court has not based its finding merely on mutation entries but also corroboration of the entries in the form of conduct of parties and clear admission regarding prior partition elicited during cross-examination. The evidence probabilises contention of defendant No. 1 more than that of plaintiff and as plaintiff failed to substantiate continuation of joint family status between plaintiff and defendants, rejection of plaintiff's claim based on finding regarding prior partition cannot be faulted. 42. The evidence probabilises contention of defendant No. 1 more than that of plaintiff and as plaintiff failed to substantiate continuation of joint family status between plaintiff and defendants, rejection of plaintiff's claim based on finding regarding prior partition cannot be faulted. 42. It is relevant to clarify that the admission regarding prior partition elicited during cross-examination of PW-1 and DW-2, relating to severance of joint family status between children of Mallappa S/o. Channabasappa, is corroborated by mutation entry Ex. D.17. The fact that this partition excluded item No. 3 land, duly corroborates the version of defendant No. 1 that it was his self-acquired property. On the other hand, the trial Court found sufficient evidence in support of the claim of defendant No. 1 that item no. 3 land was his self-acquired property. While deciding issue No. 2, trial Court refers to Ex. D.6-registered gift deed dated 09.05.1956 executed by Siddagireppa in favour of Dundappa-defendant No. 1 and Ex. D.7-M.E. No. 929 mutating name of defendant no. 1 in view of gift deed. 43. However, plaintiff claimed that defendant No. 1 blended this property into common hotch-pot by voluntarily getting names of other brothers entered in revenue records as per Ex. D.9. It is also contended that Siddagireppa was not competent to execute gift deed. It is also alternatively pleaded that even if the gift deed in favour of defendant No. 1 be held valid, it be held to be in favour of all the members of the coparcenary as intended by the donor. 44. It is interesting to note that plea of merger admits existence of separate property owned by one of coparceners and joint family property. Admission of existence of separate property of defendant No. 1 is destructive of plaintiff's contention denying partition between Channabasappa and Siddagireppa. 45. Likewise, contention that gift by donor Siddagireppa was intended to be in favour of all members of joint family and not exclusively in favour of defendant No. 1, would be destructive of plaintiff's challenge to validity of gift deed executed by Siddagireppa and item no. 3 land being his exclusive property. 46. The Hon'ble Supreme Court in the case of Steel Authority of India Ltd. v. Union of India, reported in (2006) 12 SCC 233 has held as follows: "28. The workmen whether before the Labour Court or in writ proceedings were represented by the same union. 3 land being his exclusive property. 46. The Hon'ble Supreme Court in the case of Steel Authority of India Ltd. v. Union of India, reported in (2006) 12 SCC 233 has held as follows: "28. The workmen whether before the Labour Court or in writ proceedings were represented by the same union. A trade union registered under the Trade Unions Act is entitled to espouse the cause of the workmen. A definite stand was taken by the employees that they had been working under the contractors. It would, thus, in our opinion, not lie in their mouth to take a contradictory and inconsistent plea that they were also the workmen of the principal employer. To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication." 47. Though plaintiff claims them to be alternative pleas, they are not so and are infact mutually inconsistent and destructive. The fact that plaintiff has not led any evidence in support of his contention that the donor intended the gift to be for the benefit of the joint family of plaintiffs and defendants and the specific suggestion made to DW-1 that gift deed executed by Siddagireppa during 1956 in the name of defendant No. 1 was for benefit of all children, would take away plaintiff's challenge to the gift deed. It is settled law that mutually destructive pleas can yield no relief to plaintiff. 48. In view of law laid down in Steel Authority of India (Supra) mutually destructive alternative pleas cannot be sustained. The plaintiff's claim insofar as item no. 3 is liable to be rejected on this ground also. 49. Apart from above, it is also to be noted that no specific prayer was sought challenging Ex. D.6-gift deed, and as it was a registered deed, trial Court assigned presumption available to it under Section 114 of Evidence Act and answered issue against plaintiff. It discounted claim based on mutation entry referring to decision of this Court in Avvamma's case. It also negatived plaintiff's challenge to gift deed on the ground that plaintiff failed to establish said land was coparcenary or ancestral property of Siddagireppa. 50. Insofar as issue Nos. It discounted claim based on mutation entry referring to decision of this Court in Avvamma's case. It also negatived plaintiff's challenge to gift deed on the ground that plaintiff failed to establish said land was coparcenary or ancestral property of Siddagireppa. 50. Insofar as issue Nos. 3 and 4, trial Court observed that after amendment of plaint by plaintiff including all left out properties in the suit schedule, and impleading additional parties, these issues did not survive for consideration. In view of its finding on Issues no. 1 and 2, it negatived Issues no. 5 and 6. 51. The first appellate court, after re-appreciation and re-examination of all the evidence on record, upheld the findings of the trial court. Though some serious exception is taken to point no. 2 framed by the first appellate Court, the same does not prejudice the appellants in any manner. The findings of the trial Court are not affirmed only on the basis of finding on point no. 2, but on independent assessment and examination of all the material available on record. 52. In view of the above discussion, both the substantial questions of law framed are answered in the affirmative. 53. In the result, both RSA No. 100007/2015 and RSA No. 100251/2015 are dismissed. No order as to costs.