JUDGMENT : Ravi V. Hosmani, J. Challenging impugned judgment and decree dated 24.01.2020, passed by Principal District and Sessions Judge, Chitradurga, in R.A.No.49/2013, this appeal is filed by defendants no.7 and 8. 2. With consent of Learned Advocates appearing for parties, matter is taken up for final disposal. 3. Appellants herein were defendants no.7 and 8 in suit and respondents no.7 and 8 in first appeal. Respondent no.1 herein was plaintiff in suit and appellant in first appeal. Respondents no.2 to 7 herein were defendants no.2 to 6 and 9 respectively in suit and respondents no.2 to 6 and 9 in first appeal. For sake of convenience, they shall be referred to as per their ranks in original suit. 4. O.S.No.22/2012 was filed by plaintiff seeking for relief of partition and separate possession of her 1/6th share in suit scheduled properties consisting of three agricultural lands (herein after referred to as ‘suit properties’). In plaint, it was stated that plaintiff, defendant no.2 and defendants no.7 and 8 were children of defendant no.1, while defendants no.3 to 6 were his grand-children. It was stated that suit properties were ancestral joint family properties, wherein item no. 1 sold by defendants no.1 to 8 to defendant no.9 was not binding on plaintiff, as it was sold without legal necessity. It was stated that no partition had taken place between plaintiff and defendants and she was entitled for share in suit properties. Though, she demanded partition, it was refused and defendant no.1 intended to sell suit properties without any legal necessities to deprive plaintiff of her lawful share in joint family properties. 5. On service of suit summons, defendants entered appearance and filed written statement admitting relationship with plaintiff, but denying existence of joint family status between them. It was contended that plaintiff was not entitled for relief as her marriage was performed about 25 years prior to filing of suit by giving gold and other valuable articles in lieu of her share and thereafter she was residing in her husband’s house. Sale of item no.1 of suit property without legal necessity was denied. It was asserted that on 21.03.2012, defendant no.1 and his children including plaintiff received balance consideration of Rs. 1,90,000/- from defendant no.9, executed sale deed and handed over possession on same day. Thereafter, sale consideration was divided between plaintiff and defendants. Sale of item no.1 of suit property without legal necessity was denied. It was asserted that on 21.03.2012, defendant no.1 and his children including plaintiff received balance consideration of Rs. 1,90,000/- from defendant no.9, executed sale deed and handed over possession on same day. Thereafter, sale consideration was divided between plaintiff and defendants. At that time, though defendants agreed to said oral partition, plaintiff stated that she did not intend to take share in immovable properties. Therefore, she was given Rs. 40,000/- as her share. An agreement to said effect was also executed by plaintiff and defendant nos.2 to 6. Subsequently, defendant no.1, 7 and 8 partitioned item no.2 of suit property. In view of above, as no joint family property exists, there was no cause of action for filing suit. 6. Defendant no.1 filed additional written statement, claiming item no.3 of suit property as self-acquired property and therefore, suit was not tenable. 7. Based on pleadings, Trial Court framed following issues: 1. Whether plaintiff proves that suit schedule properties are the ancestral and joint family property of herself and defendants? 2. Whether the defendants proves that plaintiff is not the member of the joint family and she has executed the sale deed along with other defendants. Hence, sale deed dated 21.03.2012 is binding on the share of plaintiff? 3. Whether defendants prove that 1st defendant and his sons 7th and 8th defendants have executed the sale deed dated 13.12.2011 in respect of the item No.1 of the property in favour of 9th defendant and plaintiff is a party to the said sale deed? 4. What order or decree? 8. To substantiate pleadings, plaintiff got herself examined as PW.1 and another witness as PW.2. Exhibits P1 to P5 were marked. On behalf of defendants, defendant no.8 and 9 were examined as DWs.1 and 2. Four others were examined as Dws.3 to 6. Exhibits D1 to D5 were marked. 9. On consideration, Trial Court answered issue no.1 in negative, issues no.2 and 3 in affirmative and issue no.4 by dismissing suit. Aggrieved, plaintiff filed R.A.no.49/2013 on several grounds. It was contended that Trial Court erred in its finding that suit properties were not ancestral joint family properties of plaintiff and defendants and that sale deed dated 21.03.2013 was binding on her. Aggrieved, plaintiff filed R.A.no.49/2013 on several grounds. It was contended that Trial Court erred in its finding that suit properties were not ancestral joint family properties of plaintiff and defendants and that sale deed dated 21.03.2013 was binding on her. It was further contended that Trial Court failed to appreciate properly oral and documentary evidence and thereby arrived at wrong conclusion. It was contended that Trial Court erred in considering that signatures of plaintiff was obtained fraudulently and that Ex.D2 was unregistered. It was also contended that even married daughters had share in joint family properties, which was misconstrued by Trial Court. 10. Based on contentions, First Appellate Court framed following points for consideration: 1. Whether the pleading and proof is sufficient to uphold the plea of the plaintiff that, the suit properties are joint family properties of the plaintiff and defendants? 2. Whether the pleading and proof is sufficient to uphold the plea of the defendants that the suit item nos.2 and 3 are self-acquired property of the defendant no.1 they sold item no.1 in favour of defendant no.9 and got partitioned the remaining properties with the consent of the plaintiff? 3. Whether the pleading and proof is sufficient to uphold the plea of plaintiff that, she is entitled for the relief of partition and separate possession in the suit properties prayed for? 4. Whether the judgment and decree of the Trial Court requires interference in the appeal? 5. What order? 11. On re-appreciation, it answered points no.1 and 4 in affirmative, points no.2 and 3 partly in affirmative and point no.5 by allowing appeal and decreeing suit in part holding plaintiff is entitled for 1/5th share in items no.2 and 3 of suit schedule properties. Aggrieved thereby, defendants no.7 and 8 are in second appeal. 12. Sri. B.M. Siddappa, Learned Counsel for defendants no.7 and 8 submitted that impugned judgment and decree passed by First Appellate Court was contrary to law, facts of case and evidence on record. At the outset, he submitted that there was grave procedural irregularity committed while passing impugned judgment and decree calling for remand and therefore, submitted that said issue would be highlighted first instead of assailing it on merits. 13. At the outset, he submitted that there was grave procedural irregularity committed while passing impugned judgment and decree calling for remand and therefore, submitted that said issue would be highlighted first instead of assailing it on merits. 13. It was submitted that during course of hearing, First Appellate Court by Order dated 21.08.2019 framed two additional issues and directed Trial Court to record evidence on same and return findings thereon, which according to it were necessary. After recording evidence, Trial Court answered both additional issues in negative and returned said findings. Thereafter, without notifying appellants or providing opportunity to file objections to said findings, First Appellate Court proceeded to dispose of appeal. Same was contrary to provisions of Rule 26 of Order XLI of CPC. He submitted that findings of Trial Court on additional issues contradicted its earlier findings and therefore, failure to provide opportunity to appellants gravely prejudiced them. He submits following substantial question of law arise for consideration: Whether First Appellate Court right in law when Trial Court finding recorded on issue no.1 to 3 is contrary to finding on additional issue no.1 and 2 in passing impugned judgment and decree in favour of plaintiff? 14. On other hand, Sri. C. Gopal Krishna Murthy, Learned Counsel for respondent no.1 - plaintiff supported impugned judgment. He submitted that First Appellate Court had rightly framed additional issues and directed Trial Court to record evidence on said issues and return its findings. Thereafter, Trial Court afforded opportunity to parties to lead evidence on said additional issues. 15. On receipt of findings, First Appellate Court heard all parties and considering contentions urged, passed impugned judgment and decree, which did not call for any interference. It was submitted that after receipt of findings on additional issues, First Appellate Court had adjourned matter on several dates and thereafter passed impugned judgment and decree. Thus, appellants had failed to object to findings. 16. Relying upon unreported decision of High Court of Himachal Pradesh in SMT. KRISHANA DEVI AND ANOTHER vs. SUBHADRA DEVI, Second Appeal No.577/2000, Dated 25.05.2004, he submitted that provisions of Order XLI Rule 26 of CPC was held as not mandatory and it was not obligatory to fix time for parties to file memorandum of objections to findings on additional issues. Therefore, infraction alleged was technical which could be ignored and sought for dismissal of appeal. 17. Therefore, infraction alleged was technical which could be ignored and sought for dismissal of appeal. 17. Heard Learned Counsel, perused impugned judgment and decree and perused records. 18. From above submission, relationship between parties is not in dispute. Nature of suit properties as ancestral joint family properties in hands of defendant no.1 is also not in dispute. While, it is case of plaintiff that without any legal necessity, defendant no.1 had alienated item no.1 of suit properties and was likely to alienate other properties likewise to deny/deprive plaintiff of her claim for share in joint family properties. It is case of defendants that plaintiff was given gold and other valuable articles in lieu of her share at time of her marriage about 25 years prior to suit. It is also their case that sale of item no.1 of suit properties was with consent of plaintiff and defendants no.1 to 8. In fact on date of sale also, there was oral partition of suit properties between them. At that time, plaintiff had expressed her wish not to claim share in item no.2 of suit properties. Therefore, she was given Rs. 40,000/- out of sale consideration received from defendant no.9 in respect of item no.1 of suit properties. At that time, she had also executed an agreement to said effect. 19. On appreciation, Trial Court upheld contention of defendants and dismissed suit. First Appellate Court, on other hand, held that findings on additional issues was necessary. It framed following additional issues: 1. Whether the defendant nos.1, 7 and 8 prove that the suit schedule item no.2 is exclusive property of defendant nos.1, 7 and 8? 2. Whether the defendant no.1 proves that the suit item no.3 is his self acquired property which is purchased by him under the registered sale deed dated 25.01.1962? 20. Upon recording evidence thereon, Trial Court answered both additional issues in negative. Considering findings, First Appellate Court reversed judgment and decree passed by Trial Court and decreed suit. 21. In view of contentions urged, following substantial question of law would arise for consideration: After receipt of findings on additional issues framed under Order XLI 25 of CPC, whether it is necessary for First Appellate Court to provide opportunity to parties to file objections to said findings? 22. In order to appreciate contentions, reference to provision would be necessary: 26. In view of contentions urged, following substantial question of law would arise for consideration: After receipt of findings on additional issues framed under Order XLI 25 of CPC, whether it is necessary for First Appellate Court to provide opportunity to parties to file objections to said findings? 22. In order to appreciate contentions, reference to provision would be necessary: 26. Findings and evidence to be put on record Objections to finding (1) Such evidence and findings shall form part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding. (2) Determination of appeal: After expiration of period so fixed for presenting such memorandum of objections, Appellate Court shall proceed to determine the appeal. 23. A bare reading of said provision would indicate that after receipt of findings on additional issues and evidence recorded, either party may file objections to findings within time to be fixed by First Appellate Court. Sub-Rule (2) provides for determination of appeal after expiry of said period. 24. Though, it is contended that said provision is not mandatory in SURAJ BAIR vs. DAN BAHADUR SINGH AND ANOTHER, 26 Indian Cases 728 referred to therein, it is held that fixing of date for presentation of memorandum of objections to findings was mere a technical irregularity which may be ignored if it does not in any way prejudice party complaining against same. 25. Order-sheet of First Appellate Court reveals that findings on additional issues were received on 05.12.2019. Thereafter appeal was adjourned on 07.12.2019, 11.12.2019, 16.12.2019, 02.01.2020 and on 03.01.2020, it was reserved for judgment. There is no mention for grant of opportunity to file objections to findings on additional issues. 26. On bare perusal of findings on issues no.1 to 3 would contradict finding on additional issues and would cause prejudice to defendants/appellants. Therefore, they would be entitled for opportunity to object to findings, which would render grant of opportunity under Order XLI Rule 26 of CPC mandatory. Hence, without any more, substantial question of law is answered in affirmative. Hence, I pass following: ORDER Appeal is allowed. Judgment and decree dated 24.01.2020 passed in R.A.No.49/2013 by First Appellate Court is set aside. Therefore, they would be entitled for opportunity to object to findings, which would render grant of opportunity under Order XLI Rule 26 of CPC mandatory. Hence, without any more, substantial question of law is answered in affirmative. Hence, I pass following: ORDER Appeal is allowed. Judgment and decree dated 24.01.2020 passed in R.A.No.49/2013 by First Appellate Court is set aside. Matter is remanded back to First Appellate Court to provide opportunity to file objections to findings of Trial Court on additional issues no.1 and 2 as required under Order XLI Rule 26 of CPC and thereafter to determine appeal on merits within a period of three months. Plaintiff and defendants no.7 and 8 are represented before this Court. They shall appear before First Appellate Court on 04.09.2022 without awaiting for further notice, which shall issue notice to other parties and dispose of appeal within three months from date of completion of service of notice. Registry to forward certified copy of this judgment, along with Trial Court records after drawing decree to First Appellate Court before 04.09.2022.