JUDGMENT : V.SRISHANANDA, J. Heard Sri Ravi G. Sabhahit, and Sri B.K. Chandrasekhar, learned counsel for the parties. 2. Unsuccessful plaintiff is the appellant challenging the dismissal of his suit in O.S No.82/1995 dated 29.09.2006 filed on the file of the Additional Civil Judge (Senior Division) and JMFC, Sagar. 3. Parties are referred to as plaintiff and defendant for the sake of convenience as per their original ranking before the Trial Court. 4. Facts in brief which are utmost necessary for disposal of the present appeal are as under: Plaintiff filed a suit for partition and separate possession with the following prayer in respect of following properties hereinafter referred as ‘suit properties’. As per the plaint averments genealogical tree of the family reads as under: 5. Plaintiff contended that children of Srinivas Naik, viz., Ramanath, Upendra, Babanna died and there were no issues for them. Senior uncle of plaintiff by name Vaman Naik died about 20 years earlier without any issues. But he left behind his wife Smt.Padmavathamma who has taken the elder brother of plaintiff by name Ratnakar Naik in adoption. Father of the plaintiff viz., Panduranga Naik passed away in the year 1972 leaving behind plaintiff, defendant Nos.2 and 3, and four daughters. 6. Plaintiff contended that marriage of the four daughters had taken place long ago. Vaman Naik and Pandurang Naik continued as joint family members and they were enjoying the properties left behind by Srinivas Naik. 7. It is further contented that to the share of plaintiff's family, lands situated in Chandraguthi, Honnavara and Kundali Village had fallen. Few of the properties are purchased by the defendants from out of the joint family income. 8. Plaintiff further contended that plaintiff and defendants resided in Chandraguthi Village and suit items mentioned in Schedule A and B are joint family properties of plaintiff and defendants and they are in joint possession of the same. 9. Plaintiff also contended that in the year 1989 there was misunderstanding between plaintiff and defendants and there was a tentative partition and parties started living as per the said partition enjoying the properties. 10. A year later, there was a panchayath convened and in such panchayath, land in Sy.Nos.112/2 and 112/3 totally measuring 2 acres 28 guntas had been given to the plaintiff and from the year 1994 plaintiff is enjoying the same. 11. 10. A year later, there was a panchayath convened and in such panchayath, land in Sy.Nos.112/2 and 112/3 totally measuring 2 acres 28 guntas had been given to the plaintiff and from the year 1994 plaintiff is enjoying the same. 11. As the differences in the joint family arose, defendants did not grant the share to the plaintiff in a proper manner resulting in filing of the suit. 12. Pursuant to the suit summons issued, defendants filed written statement admitting the relationship between plaintiff and defendant Nos.2 and 3, being the children of Panduranga Naik. 13. Relationship of the father of the plaintiff with Srinivas Naik is also admitted and other children of Srinivasa Naik, namely Ramanath, Upendra and Babanna, having died without issues, is also admitted. 14. However, in the written statement it is contented that there was a partition between Vaman Naik and Panduranga Naik on 26.04.1972, which was registered in the Sub-Registrar Office. As per the said partition, Panduranga Naik and Vaman Naik obtained their respective shares. 15. However, the share of the plaintiff as is contended in the plaint is denied by the defendants and contended that only items mentioned in the B schedule is correct. 16. Based on the rival contentions, learned Trial Judge raised the following issues and additional issues: “(i) Whether the plaintiff proves that the suit schedule A, B and C are the joint family properties? (ii) Whether the plaintiff proves that the suit D schedule property is his self acquired property? (iii) Whether the defendants prove that there was a partition in the joint family on 10.01.1989 and the properties have been allotted to each of the sharers as narrated in para 11 of the written statement? (iv) Whether 2 nd defendant proves that the suit A schedule item No.3 property bearing Sy.No.112-3 is his self acquired property? (v) Whether the 3 rd defendant proves that the suit schedule item No.2 property bearing Sy.No.112-2 is his self acquired property? (vi) Whether the defendants prove that the suit schedule B item No.7 is the self acquired property of the wife of 3 rd defendant? (vii) Whether the suit is bad for non-joinder of necessary parties? (viii) Whether the plaintiff is entitled the partition and separate possession of his 1/4 th share in the suit schedule A, B and C properties? (ix) Whether plaintiff is entitled the mesne profits? (vii) Whether the suit is bad for non-joinder of necessary parties? (viii) Whether the plaintiff is entitled the partition and separate possession of his 1/4 th share in the suit schedule A, B and C properties? (ix) Whether plaintiff is entitled the mesne profits? Additional Issues: (i) Whether the 8 th defendant prove that in item No.7 B schedule property is a herself acquired property? (ii) To what Order or decree? 17. In order to prove the case of the plaintiff, plaintiff got examined himself as PW-1 and a witness on his behalf named Dattathreya was examined as P.W-2. 18. On behalf of the plaintiff, as many as 14 documentary evidence were placed on record, comprising of RTC Extract, Demand Extract, Pulupatti, Hanchike Patti, Sketch, letters written by defendant, certified copy of hisse patra, sale deed regarding sale of Kudali land and electricity bills. 19. As against the evidence placed on record by the plaintiff, defendant No.3-Ullas Panduranga Naik is examined as DW-1 and Smt.Suma is examined as DW-2 as a witness. 20. On behalf of defendants, 15 documentary evidence were placed on record comprising of palupatti, sale deed, photocopy, certified copy of the sale deeds, copy of the hissa patra and RTC Extracts. 21. Learned Trial Judge thereafter heard the arguments of the parties and on appreciation of the material on record, dismissed the suit of the plaintiff ignoring the probative value of Ex.D-1 whereunder plaintiff was also required to get certain properties. 22. Being aggrieved by the same, unsuccessful plaintiff has filed the present appeal on the following grounds: - “That the judgment and decree passed by the court below are contrary to law and facts of the case. - The court below has erred in dismissing the suit for partition and separate possession filed by the appellant. The court below has erred in placing reliance on Ex.D-1 which is an unregistered family arrangement and which is not acted upon and it is not binding on the parties as some of the properties are not included and the sisters are not parties. - The court below failed to note that after the family arrangement in the year 1989, there is again a settlement made in the family wherein 2 Acre 20 Guntas is allowed to the share of other appellant. - The court below failed to note that after the family arrangement in the year 1989, there is again a settlement made in the family wherein 2 Acre 20 Guntas is allowed to the share of other appellant. He was in possession since 1994 and the respondents No.2 and 3 took possession and refused to re-deliver the possession to the appellant. - The court below erred in holding that the appellant failed to prove that the suit schedule 'A', 'B' & 'C' properties are the joint family properties. The court below erred in holding that the 'D' schedule property is not the self-acquired property of the appellant. - The court below has erred in holding that the 2nd respondent has proved that 'A' schedule property Item-3 bearing Sy.No.112-3 is the self acquired property. - The court below has erred in holding that the 3rd respondent has proved that item 2 of Schedule-A Property bearing Sy.No.112/2 is his self-acquired property. - The court below erred in holding that the 'B' Schedule property item-7 is the self-acquired property of the wife of the 3 rd respondent. - The court below ought to have decreed the suit for 1/8th share of the appellant in schedule 'A', 'B' & 'C' properties. - The court below has erred in holding that the 8th defendant has proved that item No.7 of 'B' schedule property is her self-acquired property. - The court below ought not to have placed reliance on Ex.D-1 which is an unregistered and inadmissible document in evidence. - The court below has failed to consider the oral and documentary evidence on record in its proper perspective and the same has resulted in miscarriage of justice to the appellant.” 23. Sri Ravi G. Sabhahit, learned counsel for the appellant/ plaintiff vehemently contended that when the learned Trial Judge accepted the case of the defendants that there was a partition and the probative value of Ex.D-1 having been appreciated by the learned Trial Judge, dismissal of the suit in toto has resulted in grave miscarriage of justice and sought for allowing the appeal at least to the extent of the properties which has fallen to the share of the plaintiff under Ex.D-1. 24. 24. Per contra, learned counsel for the respondents/ defendants, Sri Chandrasekhar contended that contents of the plaint and the schedule to the plaint contains false and wrong descriptions and therefore the dismissal of the suit is just and proper. 25. Sri Chandrasekhar, learned counsel would also contend that admissions elicited in the witness box from the plaintiff witnesses and the assertion made by the defendant No.3 who was examined as DW-1 coupled with the documents that were placed on record was sufficient enough to dismiss the claim of the plaintiff and therefore sought for dismissal of the appeal. 26. Having heard the arguments of both sides, this Court perused the material law on record meticulously. 27. On such perusal of the material law on record, the following points would arise for consideration: (i) Whether the dismissal of the suit of the plaintiff in toto has resulted in miscarriage of justice? (ii) If so, whether the impugned judgment suffers from legal infirmity and calls for interference? (iii) What order? 28. REGARDING POINT Nos.1 AND 2: In the case on hand, the relationship between the parties is not in dispute. So also, a the nature of property is not in dispute. Srinivas Naik’s other children died and only two sons survived namely Vaman Naik and Pandurang Naik. There was a registered partition deed between Vaman Naik and Pandurang Naik which is also not in dispute. 29. It is also admitted that the elder brother of the plaintiff namely Ratnakar Naik having been adopted by the wife of Vaman Naik i.e., Smt.Padmavathamma on the ground that Vaman Naik did not have issues is not in dispute. 30. Therefore, the dispute will be as to the shares left behind by Panduranga Naik between Padmavathamma, Ratnakar Naik and Ullas Naik. 31. Ex.D-1 is the document under which partition has taken place has been believed by the learned Trial Judge by discussing the material evidence in detail in paragraph No. 12 and the same is culled out hereunder for ready reference: “12. D.W.1. has stated that item. No.2, 3 and 7 are self acquired properties of defendants 2 and 3. There is no income in item No.1 of A schedule properties. Plaintiff purchased D schedule property out of consideration amount of land sold at Gundbal, which was purchased out of consideration amount of land sold at Kundalli. D.W.1. has stated that item. No.2, 3 and 7 are self acquired properties of defendants 2 and 3. There is no income in item No.1 of A schedule properties. Plaintiff purchased D schedule property out of consideration amount of land sold at Gundbal, which was purchased out of consideration amount of land sold at Kundalli. Ex.P.1 to P.3 are the R.T.Cs of item No.1 to 3 of A schedule property. Ex.P.4. to 5 demand register extract are not disputing by the parties. Ex. P.12 partition in the year 1972 is also not disputed. Ex.P.13 is a sale deed of Kundalli village is also not disputed by the defendants. Sale deeds of defendant No.2. D.3, 4, 5, 6 to 7, 9 and 10 and R.T.C. of respective lands are not disputed by the plaintiff. It is the case of the plaintiff that said property is purchased out of joint family income. Learned counsel for the plaintiff Sri. M.R. Patil, vehemently argued that Ex.D.1 un-registered family arrangement is not acted upon and it is not binding as some of the properties are not included and sisters are not parties. Learned counsel for defendants Sri.Iswarappa Naik argued that plaintiff admitted the partition in the year 1989, he can not entitled the re-partition as there is no re-union in the family. On careful perusal of the materials placed before the Court, Ex.D.1. Palupatti is marked with confrontation in the cross- examination of P.W.1. In his cross-exa-mination at para 24 to 26 admitted as under: For the above it is crystal clear that the since then they are residing separately. After plaintiff admitted the Palupatti ExD.1 and partition 3 rd defendant purchased item No.7 of B schedule property in the year 1990-93. Parties are residing in their respective shares as per Ex.D.1. Of course, Ex D.1 is not a registered deed, but when the plaintiff himself admitted the contents of the documents and his signature and said deed is acted upon. It is binding upon him that there is a partition in the family.” 32. On perusal of the above answers, it is crystal clear that the plaintiff is not disputing the contents of Ex.D-1. Therefore, there is a severance of status between the plaintiff and defendants and in the Ex.D-1, some properties have fallen to the share of the Plaintiff. 33. On perusal of the above answers, it is crystal clear that the plaintiff is not disputing the contents of Ex.D-1. Therefore, there is a severance of status between the plaintiff and defendants and in the Ex.D-1, some properties have fallen to the share of the Plaintiff. 33. To facilitate this Court as to what are the properties that has fallen to the share of the plaintiff under Ex.D-1, list of properties as per Ex.D-1 is placed on record by the counsel for contesting respondent. 34. Advocate for respondent No.2 has filed a memo showing properties belonging to appellant as per Ex.D.1. Those properties are culled out hereunder for ready reference: Item No.1: All that piece and parcel of Khaneshmari No.159, East Portion measuring about East-West 50 Feet and North-South 165 Feet bounded on the:- East by Property belong to Damodara Krishna Naik. West by Property belong to Ullas Naik-3 rd Party. North by Soraba Road. South by Boundary/Limit of Land Bearing No.158. Item No.2 All that piece and parcel of Khaneshmari No.158, East Portion measuring about East-West 40 Feet and North-South 165 Feet-South Portion and East-West - 25 Feet bounded on the:- East by Property belong to Damodara Krishna Naik. West by Property belong to Ullas Naik-3 rd Party's remaining portion. North by Property bearing No.159 (belong to Hanumantha Naik). South by Property in Khaneshmari No.157 and Property belong to Rathnakara Vamana Naik-1st Party. Item No.3 All that piece and parcel of Khaneshmari No.157, East-West 159 Feet, towards West, South-61.50 Feet, towards East, South 65 Feet and North-West belong to Ullas Naik-3rd Party in Property bearing No.158 and Portion belong to 3 rd Party in No.158 and Boundary of Property belong to Damodara Krishna Naik, bounded on the:- East by Property bearing Sy.No. 146. West by A K Colony. North by Property belong Ullas Naik-3 rd Party in No.158 and Boundary of Property of Damodara Krishna Naik. South by Property bearing No. 156. Item No.4 All that piece and parcel of Khaneshmari No.156, bounded on the:- East by Property in Sy.No.146. West by A K Colony. North by Property bearing No. 157. South by Property bearing No.155 belong to Padmavathamma deceased 1 st Respondent, measuring about East-West 190 Feet, towards West 61.50 Feet-South, towards East portion 65 Feet-South. The properties in Item Nos. 1 to 4 are not the Suit Schedule Properties” 35. West by A K Colony. North by Property bearing No. 157. South by Property bearing No.155 belong to Padmavathamma deceased 1 st Respondent, measuring about East-West 190 Feet, towards West 61.50 Feet-South, towards East portion 65 Feet-South. The properties in Item Nos. 1 to 4 are not the Suit Schedule Properties” 35. Learned counsel for the respondent No.2 has also submitted that there would not be any objection for revenue entries to be mutated in favour of the plaintiff insofar as aforesaid four properties are concerned. His submission is placed on record. 36. When the plaintiff categorically admitted the contents of Ex.D-1, Trial Court ought to have decreed the suit insofar as the properties that have fallen to the share of the plaintiff under Ex.D-1. 37. Ignoring said aspect of the matter, dismissing the suit of the plaintiff in toto has thus resulted in miscarriage of justice as is rightly contented by Sri Ravi G. Sabhaith, learned counsel for the appellant. 38. Suit is one for partition. Therefore, the Trial Court was bound to consider the probative value of Ex.D-1 in its right perspective and should have decreed the suit in part by granting the properties that has fallen to the share of the plaintiff under Ex.D-1. Therefore, a case is made out by the plaintiff to decree the suit insofar as the aforesaid properties which are part of Ex.D-1. 39. In view of the foregoing discussion, dismissal of the suit in toto has resulted in miscarriage of justice and therefore, point No.1 is to be answered in affirmative by decreeing the suit in part in granting aforesaid four properties as per Ex.D-1 to the plaintiff. 40. Consequently, dismissal of the suit in toto to the extent of non granting the properties to the plaintiff as per Ex.D-1, the impugned judgment is incorrect and needs to be set aside. 41. In view of the above, point No.1 is answered in the affirmative and point No.2 partly in the affirmative. 42. REGARDING POINT No.3: In view of the finding of this Court on point Nos.1 and 2 as above, the following: ORDER (i) Appeal allowed in part. (ii) Dismissal of the suit of the plaintiff in toto is hereby set aside. In view of the above, point No.1 is answered in the affirmative and point No.2 partly in the affirmative. 42. REGARDING POINT No.3: In view of the finding of this Court on point Nos.1 and 2 as above, the following: ORDER (i) Appeal allowed in part. (ii) Dismissal of the suit of the plaintiff in toto is hereby set aside. (iii) Suit is decreed in part by directing that the plaintiff is entitled for the four properties as is mentioned in the body of the judgment which are part of Ex.D-1. (iv) Office is directed to pass appropriate decree accordingly. (v) No order as to costs.