JUDGMENT 1. Challenging judgment and decree dtd. 30/11/2017 passed by I Addl. District and Sessions Judge, Haveri (for short, "first appellate Court") in R.A. no.43/2010, allowing appeal and setting aside judgment and decree dated 27.01 .2010 passed by Civil Judge (Sr .Dn.), Hangal (for short, "trial Court") dismissing suit in O.S. no.41/2007, filed for partition and separate possession, this Regular Second Appeal is filed. 2. Though this appeal is listed for admission, with consent of learned counsel for parties, it is taken up for final disposal. 3. Appellants herein were defendants no.2 to 7 in suit and respondents no.2 to 9 in first appeal. Respondents no.1 and 2 herein were plaintiffs no.1 and 2 in suit and appellants no.1 and 2 in first appeal. Respondents no.3 and 4 herein were defendants no.8 and 9 in suit and respondents no.10 and 11 in first appeal. Defendant No.10 died during pendency of first appeal. Respondents no.5 to 12 are legal representatives of deceased defendant No.10. They were respondents no.12(a) to 12(i) in first appeal. For sake of convenience, parties to this appeal are referred to as per their ranks before trial Court. 4. That O.S. No.41/2007 was filed by plaintiffs seeking for partition of their half share in schedule 'A', 'B' and 'C' properties and for separate possession in schedule 'A' and 'B' properties and for grant of Rs.2,10,000.00 in schedule 'C' towards their half share. They also sought for award of mesne profits etc. 5. In plaint, it was stated that Rachappa was original propositus. He begot five children through his wife Gangamma namely Nagavva, Basappa, Rudrappa, Hiriyamma and Nagappa. It was further stated that propositus, his wife and all children had died and there was extinguishment of branch of Nagavva and Hiriyamma. However, Basappa had a daughter Veerasangavva. She also had a daughter Mahadevakka, but both of them had died leading to extinguishment of branch of Basappa also. Rudrappa, begot two daughters through his wife Neelavva namely Bhadravva and Premakka who are plaintiffs herein. 6. Nagappa had eight children through his wife Gangamma (defendant No.1) namely Basavanneppa (defendant No.5), Laxmavva (defendant No.6), Gangavva (defendant No.7), Shantavva (defendant No.8), Guddappa (defendant No.2), Basappa (defendant No.3), Rachappa (defendant No.4) and Iramma (defendant No.9). 7. It was stated that lands in Sy. No.78/1B+2 measuring 4 acres situated at Shikaripura, Hangal and Sy. 6. Nagappa had eight children through his wife Gangamma (defendant No.1) namely Basavanneppa (defendant No.5), Laxmavva (defendant No.6), Gangavva (defendant No.7), Shantavva (defendant No.8), Guddappa (defendant No.2), Basappa (defendant No.3), Rachappa (defendant No.4) and Iramma (defendant No.9). 7. It was stated that lands in Sy. No.78/1B+2 measuring 4 acres situated at Shikaripura, Hangal and Sy. No.79 measuring 2 Acres 25 guntas situated at Sangur village, Haveri comprised schedule 'A' properties while house Nos.309, 310 and 311 situated at Sangur village comprised schedule 'B' property. It was also stated that fixed deposit receipts in Karnataka Vikas Grameena Bank bearing account PCC nos.1031, 1032, 1033 and Rs.60,000.00 in S.B. Account comprised schedule 'C' properties. 8. It was stated that plaintiffs being daughters of deceased Rudrappa were entitled to half share in suit properties as they constituted members of joint family coparcenary. It was also stated that despite several demands, defendants no.1 and 2 had not partitioned their properties, thereby constraining plaintiffs to file suit properties. 9. After service of summons, defendants no.2 and 3 entered appearance and opposed suit stating that genealogy shown in plaint was incomplete as one more daughter of propositus Basamma wife of Mallappa Narachikatti was left out and therefore suit was bad for non-joinder of necessary parties. It was also contended that suit schedule properties were self acquired properties of Basappa. Even assertion in plaint that name of Veerasangavva was mutated in respect of schedule 'A' properties and continued as such. It was also stated that during her lifetime Veerasangavva had adopted defendant no.3 as her adopted son about 15 years prior to suit and Veerasangavva continued to be in possession and cultivation of same and therefore, plaintiffs were not entitled for any share in suit schedule properties. 10. Defendant no.3 filed separate written statement stating that Basappa husband of Veerasangavva had died about 20 years ago and thereafter Veerasangavva had taken her husband's brother son Basappa in adoption. Thereafter, he was residing with Veerasangavva. It was further stated that Mahadevakka, daughter of Veerasangavva had died on 15/1/2006 and Veerasangavva herself has died on 6/5/2007. As defendant no.3 was sole surviving legal heir of Basappa's branch. It was also stated that in O.S. no.60/2007, he had obtained a decree declaring that he was adopted son of Veerasangavva. The other defendants did not file written statement. 11. As defendant no.3 was sole surviving legal heir of Basappa's branch. It was also stated that in O.S. no.60/2007, he had obtained a decree declaring that he was adopted son of Veerasangavva. The other defendants did not file written statement. 11. Based on pleadings, trial court framed following issues: "i. Whether plaintiffs prove that suit schedule ABC properties are joint family properties? ii. Whether plaintiffs prove plaint genealogy as correct? iii. Whether plaintiffs prove that they are entitle for half share in the suit properties? iv. Whether plaintif fs are entitle for partition and separate possession as prayed? v. Whether suit is bad for non-joinder of necessary parties as contended in para 2 o f W.S.? vi. Whether de fendant no .3 proves that he is adopted son of Veerasangawwa? vii. What order or decree?" 12. In order to establish their case, plaintiff no.1 examined herself as PW1 and got marked Exhibits P.1 to P.9. On behalf of defendants, defendant no.3 is examined as DW1 and also examined two witnesses as DWs.2 and 3 and got marked Exhibits D.1 to 7. 13. On consideration, trial Court answered issue no.1 as not arising for consideration, issue no.2 partly in affirmative; issues no.3 to 6 in negative and issue no.7 by dismissing plaintif fs' suit. 14. Aggrieved by said judgment and decree, plaintiffs preferred regular appeal before first appellate Court on several grounds. It was submitted that trial Court erred in not considering genealogy and relationship of properties, trial Court failed to frame proper issues. It failed to analyze evidence on record. It did not record finding on all issues. It also failed to note that jurisdiction of trial Court. 15. Based on same, first appellate Court framed following points for its consideration: "i. Whether appellants no .1 and 2 / plaintif fs no .1 and 2 proves that suit schedule ABC properties are ancestral undivided family properties and after demise of Basappa and his wife Smt.Veerasangavva and their only daughter namely Mahadevakka, appellants no .1 and 2 are nearest legal heirs entitled to get 1/2 share in suit schedule ABC properties and as such trial court judgment and decree impugned in this appeal is perverse, capricious and arbitrary and deserves to be interfered with an set aside? ii. ii. Whether de fendant no .3 / respondent no.5 proves that he is adopted son of deceased Basappa and Veerasangavva and entitled to succeed to he properties of deceased Basappa and Veerasangavva as adopted son and decree passed in O .S. No.60/2007 is binding upon plaintiffs? iii. What order?" 16. On consideration, first appellate Court answered point no.1 in af firmative, point no.2 in negative and point no .3 by allowing appeal and setting aside the impugned judgment and decree and decreeing the suit holding that plaintiffs entitled for half share in schedule 'A', 'B' and 'C' properties. 17. Aggrieved by the same, de fendants no.2 to 7 have filed this Regular Second Appeal. 18. Sri.A.P.Murari, learned counsel for appellant submitted that first appellate Court was not justified in allowing appeal as trial Court had rightly dismissed the suit. It was submitted that in view o f judgment and decree passed in O.S. no .60/2007, plaintif fs could not question adoption of de fendant no.3 by Veerasangavva. Ignoring this aspect, appellate Court allowed appeal. It was further submitted that defendant no .3 looked after Veerasangavva and Mahadevakka. As Mahadevakka predeceased Veerasangavva, she was completely dependant on de fendant no .3, both for survival and for management o f properties. Further, after death o f her husband Basappa, there was no impediment for her to take Nagappa in adoption to continue family lineage. Both the Courts erred in not appreciating this aspect. It was further contended that plaintiffs being female members and class II heirs o f deceased Basappa are not entitled to share in suit properties which belonged exclusively to Basappa. Therefore, first appellate Court was not justified in determining half share to plaintif fs. 19. On above submissions, learned counsel submitted that following substantial questions of law would arise for consideration. "(a) Whether the judgments and decrees in O.S. No .41/2007 dtd. 27/1/2010 of the trial Court and in R .A. No .43/2010 dated 30 .11.2017 of the first appellate Court negativing the status o f de fendant No.3 as adopted son of Veerasangavva in the face o f judgment and decree in O.S. No.60/2007 dtd. 5/7/2007 (Ex.D2) passed by the Addl. Civil Judge (Sr . Dn.) and JMFC, Haveri, declaring defendant No .3 as the adopted son o f Veerasangavva, are justifiable? 5/7/2007 (Ex.D2) passed by the Addl. Civil Judge (Sr . Dn.) and JMFC, Haveri, declaring defendant No .3 as the adopted son o f Veerasangavva, are justifiable? (b) Whether the judgment and decree in R.A. No .43/2010 dated 30 .11.2017 of the first appellate Court awarding 1/2 share in suit schedule A, B and C properties to the plaintif fs as Class II heirs of deceased Basappa, reversing the judgment and decree of the trial Court in O .S. No .41/2007, is justifiable? (c) Whether the judgments and decrees of the trial Court and first appellate Court in O .S. No .41/2007 dtd. 27/1/2010 and in R.A. No.43/2010 dtd. 30/11/2017 are otherwise justifiable in law?" 20. On the other hand, Sri.M.S.Haravi, learned counsel for respondents supported the impugned judgment and opposed appeal. It was submitted that the main ground on which the suit was opposed was on the ground o f adoption o f defendant no .3 by Smt.Veerasangavva. However, the deed of adoption was not produced before the court. the compromise decree in O .S.no .60/2007 was admittedly between de fendant no.3 and his natural mother and there fore, not binding on plaintiffs. It was also submitted that finding regarding failure to establish adoption was concurrent and therefore, did not call for interference . 21. From above submission, relationship between parties are not in dispute . Nature of properties is also not in dispute. While plaintiffs claim that upon extinguishment o f branches of Nagappa, Hiriyamma and Basappa, legal heirs of surviving branches namely Rudrappa and Nagappa were entitled to half share in suit schedule properties. They deny claims o f defendants under another Court decree on ground that they were not parties to the same and he would not bind them. 22. On other hand, defendants submit that upon death of husband Basappa and daughter Mahadevakka, Veerasangavva adopted Basappa son of Nagappa (de fendant no .3). There fore, he succeeded to share of Basappa and plaintiffs were not entitled for any share . While dismissing suit, trial court has held that as plaintif f filed application for impleading Basamma as a party to the suit upon raising objections by defendants there fore, ob jection regarding non- joinder did not survive . There fore, he succeeded to share of Basappa and plaintiffs were not entitled for any share . While dismissing suit, trial court has held that as plaintif f filed application for impleading Basamma as a party to the suit upon raising objections by defendants there fore, ob jection regarding non- joinder did not survive . It also observed that there was no dispute about nature of suit schedule properties as joint family properties and therefore held that issue no.1 would not arise for consideration. Inso far as adoption of defendant no .3 by Veerasangavva, held that deposition of DWs.2 and 3 was contrary to their statement in examination-in-chie f. Though in the examination-inchief, it was stated that adoption took place about 10 to 15 years ago, after death o f Basappa, DW3 stated in cross examination that at the time of adoption, he was 25 years o f age and adoption was in the presence of his natural and foster parents. It was also stated that deed of adoption was prepared 2 days a fter adoption and same was registered. However, adoption deed was not produced. DW3 admitted that he was not aware about preparation of adoption deed. It also observed that O.S.no .60/2007 was disposed o f in terms of compromise and there was no adjudication about legality of adoption. It further observed that the said suit was filed by defendant no.3 only against his natural mother and none o f the defendants were parties to said decree. For above reasons and also for nonproduction o f registered adoption deed, trial Court drew adverse inference and held against adoption. 23. Despite above findings, trial court proceeded to hold that entries in revenue records reflected name of defendant no.3, which attracted presumption regarding possession, under Sec. 133 of the Land Revenue Act and on this ground dismissed the suit. 24. The appellate court while confirming findings of trial court on adoption and taking note of admission of relationship o f parties to suit on re-appreciation of documentary evidence held that in the absence of evidence to establish that suit properties were self acquired properties of Basappa, they would constitute joint family properties and as only two branches were in existence, proceeded to hold that plaintif fs and defendants were entitled for 1/2 share in suit schedule 'A', 'B' and 'C' properties. It accordingly set aside the judgment and decree passed by the trial court, allowed the appeal in part. 25. Though learned counsel Sri.A.P.Murari strenuously argued against the findings of appellate court, admittedly for non-production o f deed o f adoption and plaintif fs being not arrayed as parties to the compromise decree, would not establish adoption. As all but the branches of Rudrappa and Nagappa had extinguished and plaintiffs were representing branch o f Rudrappa was entitled to half share in suit properties, which were the properties belonging to propositus Rachappa. The defendants hailing from branch o f Nagappa were entitled for remaining half share . The reasoning of the first appellate court being in accordance with law and on due appreciation of evidence on record does not suf fer from any material irregularity, perversity or capriciousness. No substantial question of law arises. Appeal is accordingly dismissed.