Vishwantha Rao vs Nagaraja Rao and Others

A.V. Chandrashekara, J.—The appellant herein is the lone plaintiff of an original suit bearing O.S. No. 106/1989 which was pending on the file of Court of the Munsiff, Tarikere

Suit was filed by the plaintiff-Sri. M.S. Vishwanatha Rao s/o Late Shankar Rao for the relief of reopening of partition against 12 persons in the Court of Munsiff, Tarikere. According to him, partition effected vide registered partition deed dated 25.6.1986 is the outcome of misrepresentation of facts and fraud played on him and hence the said partition does not bind him. Therefore he wants fresh partition. The suit came to be filed in respect of 12 items as described in the schedule appended to the plaint.

Plaintiff and defendant Nos. 1 to 5 namely deceased M.S. Nagaraj, Sathyanarayana, Chandrakantha, Yalloji Rao and Narasimha Murthy are the sons of late Shankar Rao and defendant No. 6 is the wife of Late Shankar Rao and mother of plaintiff and defendant Nos. 1 to 5 defendant Nos. 7 and 8 are the purchasers of item Nos. 7 and 8 of the suit schedule property.

Parties will be referred to as per ranking before the trial court.

According to the plaintiff, suit schedule properties are the Hindu Undivided Family properties and were in joint possession and enjoyment of the plaintiff and defendant Nos. 1 to 6. According to the plaintiff, somewhere in the month of May 1986 defendant Nos. 1 to 6 expressed their intention to divide the properties by metes and bounds. Accordingly, on 25.6.1986 he was informed that he should be present before the Sub-Registrar office to sign the partition deed. Accordingly, plaintiff went to The Sub-Registrar office by 3.00 p.m. on 25.06.1986 by closing his cloth shop and put his signature on the partition deed with implicit faith since they had told him that all the properties had been equally divided among the family members. He is stated to have believed the version of the defendant No. 1 and subscribed his signature to the partition deed. Same was registered with the Sub-Registrar. He was told by the defendant No. 1 that he would be supplied with the copy of the partition deed soon after it was received from the office of the Sub-Registrar. With this assurance, he left the Sub-Registrar office to go to the shop.

Within a fortnight he was supplied with the copy of the partition deed and he was shocked to note that all the defendants had been allotted Lion share and he had been allotted only one item i.e., item No. 9. Being aggrieved by this, he insisted the defendants to reopen the partition and thereafter to equally divide the properties. Defendants went on promising him but later on backed out. Therefore, he got issued legal notice on 2.2.1987 calling upon the defendant Nos. 1 to 6 to reopen the partition deed. Inspite of receipt of notice, they did not come forward. Therefore, he filed a suit for reopening the partition in the year 1989.

Defendant Nos. 1 to 6 have chosen to file a detailed joint written statement. Admittedly, suit schedule properties were the joint family properties. They have admitted the relationship. According to them, apart from the property allotted to the plaintiff in the partition deed, family business run under the name and style M/s. Mahendrakar Cloth Centre was also given to him and several persons had owed lot of debts to M/s. Mahendrakar Cloth Centre, shop owned by the joint family. The allegation of the plaintiff that just believing defendant No. 1, HE has put his signature has been specifically denied. The allegation of misrepresentation of facts and fraud played on him have been emphatically denied. According to them, cloth shop M/s. Mahendrakar Cloth Centre has been given to the plaintiff with debts due to it from various customers. It is further averred that no document was obtained from the plaintiff for having handed over the joint family business to him because of implicit faith and confidence. It is further averred that loan had been raised from State Bank of Mysore, Tarikere Branch for carrying on the business of M/s. Mahendrakar Cloth Centre from all the family members and loan amount had not been repaid by the plaintiff inspite of taking assets and liabilities. Plaintiff is stated to have sold the site allotted to his share in the partition deed measuring 11 1/2 x 75 feet, to the defendant No. 1 and he is not coming forward to execute sale deed on the basis of agreement of sale. According to them, suit was frivolous and vexatious and there was no cause of action.

Defendant No. 7 has filed detailed written statement stating that he has purchased the house from Chandrakanth for valuable consideration after obtaining financial assistance from the bank. He is stated to have sold the said house measuring 12 1/2 sqft. He is stated to have sold the said house for consideration of Rs. 1,00,000/- during the year 1989. Purchaser is stated to have effected improvements to the said house. He is stated to have purchased the property after coming to know that the property in question had fallen to the share of his vendor. With these pleadings defendants have requested for dismissal of the suit.

On the basis of the above pleadings, the trial Court has framed following issues for consideration. The issues are in kannada and translation of the same is as follows:

"1) Whether the plaintiff proves that proper share has not been given to him and that defendant Nos. 1 to 6 have obtained partition deed dated 25.6.1986 by playing fraud on him?

2) If so whether plaintiff is entitled to share in the remaining properties?

3) Whether plaintiff has filed the suit beyond time?

4) Whether the court fee paid and valuation made is not correct?

5) Whether the suit is liable to be dismissed for non joinder of necessary parties?

6) Whether plaintiff is entitled for any relief?

7) What order or decree?"

Plaintiff is examined as PW-1 and Sri. Revanna, is examined as PW-2. Defendant Nos. 1 and 3 have been examined as DW-1 and 2 respectively and two other witnesses have been examined as DW-3 and 4. 8 exhibits have been marked on behalf of the plaintiff and no documents have been marked on behalf of the defendants.

Ultimately, issues 1 to 6 have been answered in the negative and consequently suit is dismissed after contest vide order dated 22.11.1994. Against the said judgment and decree, a regular appeal was filed before the Court of Senior Civil Judge, Tarikere in R.A.13/1995 by the plaintiff under Section 96 of CPC. The said appeal has been dismissed on 17.8.2004 after contest by framing following 5 points for consideration:

"1) Whether the appellant/plaintiff has made out substantial grounds for admitting additional evidence?

2) Whether the defendants 1 to 6 have misrepresented the appellant/plaintiff and practiced fraud while effecting the division?

3) Whether the appellant/plaintiff has proved that the share allotted to him was unequal and entitled to reopen the partition?

4) Whether the impugned Judgment and decree of the Trial Court needs interference by this Court?

5) What Order?"

The learned Judge of the First Appellate Court has answered 4 points in the negative and ultimately the said appeal has been dismissed on 17.8.2004 by confirming the judgment of the trial court. It is these concurrent findings which are called in question on various grounds as set out in the appeal memo.

The appeal has been admitted on 1.4.2010 to consider the following substantial questions of law:

"1) Whether the courts below were justified in dismissing the suit of the plaintiff-appellant even after having found that the earlier partition dated 25.6.1986 is unequal and plaintiff is given lesser share?

2) Whether the courts below were justified in holding that towards the share of the plaintiff, a running concern was given to him even after having found that there is no material produced by the defendants for having transferred such running concern, not even reflected in the partition deed?

3) Whether the courts below were justified in holding that the plaintiff is not entitled for reopening of the partition effected on 25.6.1986?"

Since all these substantial questions of law are interrelated they are taken up together for common discussion.

The case of the plaintiff is one for reopening of partition effected through registered document on 25.6.1986. He is stated to have been allotted site and building measuring 11 1/2 x 75 feet bearing assessment No. 3083/2991, Tarikere Town, Chikmagalur. According to the plaintiff, he had implicit faith in the defendants and appeared before the Sub-Registrar office on 25.6.1986 at about 3.00 p.m. as told by them to subscribe his signature. He is stated to have believed the words of defendant No. 1 that equal share had been allotted to him in respect of family properties. This, according to the plaintiff, is a clear misrepresentation of facts and fraud being played on him. According to him, properties allotted to defendant No. 1 to 6 are comparatively larger in extent and are more valuable. A party who pleads fraud, misrepresentation, coercion or undue influence has to furnish the particulars of fraud, misrepresentation of facts or coercion. Degree of proof to prove such allegation is almost akin to the degree of proof as insisted in criminal cases. Order 6 Rule 4 of CPC mandates that particulars shall be stated in the pleading whenever misrepresentation, fraud, breach of trust, willful default, or undue influence is pleaded.

What is held in the decision of Hon''ble Apex Court in the case of The Union of India (UOI) Vs. Pandurang Kashinath More, AIR 1962 SC 630 : (1961) 3 FLR 323 : (1961) 2 LLJ 427 is that particulars must be given in full if improper conduct like fraud, undue influence or coercion is pleaded. Infact the Apex Court, in the case of Subhas Chandra Das Mushib Vs. Ganga Prosad Das Mushib and Others, AIR 1967 SC 878 : (1967) 1 SCR 331 , has held that court must scrutinize the pleadings to be satisfied that a proper plea is raised and full particulars of those charges are set out in detail before examining whether undue influence was exercised or not. In the case of Afsar Sheikh and Another Vs. Soleman Bibi and Others, AIR 1976 SC 163 : (1976) 2 SCC 142 : (1976) 2 SCR 327 , the Hon''ble Apex Court has held that all though undue influence, fraud, misrepresentation and other misconduct are coextensive and may overlap in some cases, they are distinctive in categories. In view of the mandate of order 6 Rule 4 of CPC read with Order 6 Rule 2 of CPC they are to be independently pleaded with specificity, particularly and precision.

Defendant Nos. 1 to 6 have taken up specific contention that apart from the above property situated in Tarikere Town being allotted to the plaintiff, family business run under the name and style M/s. Mahendrakar Cloth Centre was also given to him and it was in running condition. It is further averred that the entire stock in trade and debts due by several customers to the said shop was also given to him. It is in this regard the substantial question of law No. 2 assumes importance.

In his evidence, PW-1 has deposed that earlier panchayat had taken place relating to partition of properties of joint family and that he had believed that properties allotted to each sharer in the said panchayat were found in the registered deed and therefore, he did not question anybody. Whereas the plaintiff has not averred anything about the panchayat convened earlier to the registration of the partition deed relating to division of the properties. This portion is nothing but the improvement. If the oral deposition of PW-1 is accepted, it is clear that plaintiff was not called to the Sub-Registrar office as contended in the pleading. He has not stated that defendant had informed him about the fact of allotment of share and signing of the document.

As rightly pointed out by the first appellate court in paragraph 19 of the judgment, there was no obligation on the part of the defendants to disclose any facts regarding partition. Non disclosure of the facts cannot be termed as misrepresentation as put forth by the plaintiff. Plaintiff took his share in the month of May 1986. What is averred in paragraph 3 of the plaint is that in the month of May 1986, defendants had expressed their intention to him that it would be better to have partition of the properties by metes and bounds. Nowhere it is mentioned in the plaint that panchayat had been convened and properties had been equally divided and they were reflected in the partition deed dated 25.6.1986 and he simply believed that share allotted to him in the panchayat had been mentioned in the registered partition deed.

In a case like this, where the plaintiff pleads misrepresentation of facts and fraud, the initial burden will be heavy on him and he has to effectively discharge the same. Unless initial burden is effectively discharged, the onus does not shift on the other side. His cross examination was recorded on 17.3.1994 i.e., 8 years after the partition took place. He has deposed that his father Shankar Rao was running cloth shop and himself and his brothers were looking after the same. He has further admitted that since 8 years he is stated to have been looking after the said shop. He has admitted that shop was run under the name and style ''M/s. Shankar Rao and Sons'' and it belonged to all the sons of Shankar Rao. He has deposed that he has been paying sales tax for the past 8 years. He has further deposed that he has filed 4 suits on behalf of the family business and his brothers have not participated in filing those suits. He has further deposed that he has been looking after the said cloth shop run after the partition was effected and no document is executed in his favour authorizing him to look after the said shop. He has deposed that he has maintained accounts relating to the said firm.

Defendants have been able to probablise that family cloth business has been looked after by the plaintiff and that they have never participated in the said business. This would demonstrate that the family cloth business run by his father was given to the plaintiff. Properties that are mentioned in the partition deed are immovable properties and immovable properties are forthcoming in the suit. Apart from the immovable properties, family business was also given to him. Unless there was stock in trade, he could not have paid any sales tax in respect of the said firm. This also further probablises the assertion of the defendants that family running concern was given to him. Evidence in civil case has to be assessed on the broad preponderance of probabilities. On looking in to the important answers elicited from his mouth during the course of cross examination, it is evident that the joint family had a running family concern and it was handed over to him as his share apart from the immovable property allotted under the partition deed.

What is deposed by the plaintiff in his examination-in-chief is that in the year 1986 all the family members thought it fit to divide the family properties and accordingly Panchayat was held. It is further held that in the said panchayat, properties to be allotted in his share were identified and in the said panchayat his relatives and friends had also participated. It is in this regard, he has examined one Revanna as PW-2.

PW-2 has deposed that Panchayat was held in the year June 1986 between the plaintiff and defendant Nos. 1 to 6 and he was called as Panchayatdhar. Plaintiff is stated to have told his family members that one site in Bhadravathi, two acres of land in Duglapur and a country tiled house situated in BH road, Tarikere have to be allotted to him. Hence, he has made a request to his brothers in this regard. He has deposed that no document was executed in this regard. He has been cross examined at length. He has feigned ignorance to mention the date of convening of panchayat. He does not remember the properties allotted to the other sharers. He has feigned ignorance as to the talks that took place in the Panchayat relating to the properties to be allotted to the other sharers. He does not know as to what happened after alleged panchayat. If he could remember the property to be allotted to the plaintiff in the Panchayat convened by the family members, it is ununderstandable as to how he could feign ignorance about properties to be allotted to the other sharers. Hence, much credence cannot be attached to the evidence of PW-2 and hence it of no help to the plaintiff.

On the other hand plaint is silent about the participation of Revanna in the panchayat convened prior to the execution of partition deed. He has deposed that he believed that the properties agreed to be allotted in the oral panchayat had been mentioned in the partition deed and therefore, he subscribed his signature without reading the same.

When the very alleged panchayat is not established, allegation of misrepresentation of facts and consequently fraud being played upon him have not been proved in the manner in which they are to be proved. It is his case that he is allotted only one old house situated near the BH road and his brothers have taken very valuable properties and partition is unequal, unjust and unfair. Therefore, he has deposed that they have cheated him.

Though partition took place in the month of June 1986, suit came to be filed in the year 1989 i.e., 3 years after the partition came into being. As already deposed he has been looking after the running family cloth business and it had trade in stock. He has further admitted that the parties have been enjoying their respective shares as per their partition deed. If he had not been allotted running family concern, he could not have filed four suits on his own to recover the dues on behalf of the family concern. To a specific suggestion put to him in order to avoid stamp duty and running concern was not included, he has feigned ignorance. If the same had not been allotted as part of his share he would have definitely answered in the negative. He has admitted that his mother has already sold the property allotted to her. This discloses that Ex.P8 has been acted upon

On the other hand, M.S. Nagaraj Rao the deceased 1st defendant has deposed that M/s. Mahendrakar Cloth Centre was family business looked after by his father while he was alive and after his death, plaintiff had been looking after the same. It is deposed by him that the said cloth shop was looked after by all the members of the family till partition took place. He has deposed in his cross examination that defendant Chandrakanth and plaintiff-Vishwanath Rao were running M/s. Mahendrakar Cloth Centre and later on Vishwanath Rao has been running the same after partition. To a suggestion put to him that Revanna and Ameer Khan had participated as Panchayathdhars in the panchayat convened one week before the execution of partition deed, he has specifically answered in the negative.

Admittedly, plaintiff is a literate man having worldly knowledge and has put his signature in English. He has not been able to probablise that a panchayat was held earlier to the partition deed, and that three properties had been allotted to him. Even the evidence of DW-2 is on the lines of evidence of DW-1 and he has corroborated the version of DW-1. According to him, draft partition deed had been prepared and plaintiff had assisted him in writing the draft. According to DW-2, original of Ex.P-8 partition deed was received by the plaintiff from the Sub-Registrar office. Suggestion put to him that Revanna and Ameer Khan were panchayathdhars in the earlier panchayat has been specifically denied. Suggestion put to PW-1 that one site in Bhadravath, two acres of land in Duglapur and M/s. Mahendrakar Cloth Centre had been allotted to PW-1 in panchayat has been emphitically denied. On the other hand defendants have examined T.L. Ramaswamy, Tailor of Tarikere Town, who is an attestor to Ex.P-8-partition deed. He has specifically deposed that plaintiff and defendant Nos. 1 to 6 are very well known to him and partition was singed by all the executants on their own volition. Suggestion put to him that he has been deposing because of friendship with Nagaraja Rao has been denied.

On the other hand, K. Ramaswamy, deed writer is examined as DW-4 and he is the scribe of Ex.P-8 and he is a resident of Tarikere village. He has deposed that after partition, all the sharers have been living separately and plaintiff and other defendants subscribed their signatures after understanding the contents of the partition deed. He has deposed that Puttaswamy and Anoji Rao subscribed their signatures in the shop and it is further deposed that all the sharers subscribed the signatures in the house of DW-1 Nagaraj Rao. Suggestion put to him that DW-1 did not put his signature in the house and that he subscribed his signature in the sub-registrar office has been denied. Though he is cross examined at length nothing has been elicited from his mouth to disbelieve the creditability. By no stretch of imagination he could be considered as an interesting witness more particularly PW-4 being the licensed deed writer.

What exactly is the legal position for reopening the partition has been well dealt by the Hon''ble Apex Court in the case of Ratnam Chettiar and Others Vs. S.M. Kuppuswami Chettiar and Others, AIR 1976 SC 1 : (1976) 1 SCC 214 : (1976) 1 SCR 863 . What is ultimately laid down in the said decision is that partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case, the court should require a strict proof of facts because an act inter vivos cannot be lightly set aside. Paragraph 19 of the said decision is relevant and same is extracted hereinbelow:

"19. Thus on a consideration of the authorities, discussed above and the law on the subject, the following propositions emerge:

(1) A partition effected between the members of the Hindu Undivided Family by their own violation and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.

(2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is done in good faith and in bonafide manner keeping into account the interests of the minors

(3) Where, however, a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.

(4) Where there is a partition of immovable and moveable properties but the two transactions are distinct and separable or have taken place at different times, if it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transactioin which is just and fair and to reopen the partition that is unjust and unfair."

What is argued by the learned senior counsel Sri. Shivappa for the plaintiff/appellant is that partition so effected vide Ex.P-8 is unjust and unfair and that it is detrimental to one of the sharers and therefore it needs to be reopened. He has further relied upon the said decision rendered in the case of Ratnam Chettiar to contend that as per the facts of the said case, partition in respect of movable properties and cash were reopened and therefore, same exercise should be done in the present case.

Normally partition effected cannot be reopened unless the said partition entered into between the members of the family is found to be the outcome of fraud or undue influence or coercion. It can be reopened if it had taken place between the members of the family in which minor''s interest is prejudiced because of unjust partition. On reading the entire decision rendered in the case of Ratnam Chettiar and on reading the contents of the plaint vis-�-vis the evidence adduced by the parties, PW-1 is expected to prove that the partition deed was the outcome of the misrepresentation of facts and fraud.

As per mandate of Order 6 Rule 4 of CPC, no acceptable evidence is placed on record to substantiate the serious allegation of misrepresentation of facts and fraud played upon him. On the other hand, defendants have been able to probablise that M/s. Mahendrakar Cloth Centre was a joint family business and that was allotted to him as his share. Even though allotment of family running business is not reflected in Ex.P-8, defendants have been able to elicit useful admissions from the mouth of PW-1 in regard to the allotment of the said business. Though the trial court has held that partition appears to be unequal and plaintiff has been allotted lesser share in Ex.P-8, defendants have been able to probalise that allotment of immovable properties and the business would be the just share of the plaintiff.

The first appellate court has to reassess the entire evidence by formulating proper points for consideration under Order 41 Rule 31(a) of CPC. It has to reassess the entire evidence in right perspective. If the first appellate court intends to upturn the well considered judgment of the trial court, it need not give elaborate reasons, as held by the decision of Hon''ble Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., (2001) 251 ITR 84 : (2001) 2 JT 407 : (2001) 1 SCALE 712 : (2001) 3 SCC 179 : (2001) 1 SCR 948 : (2001) AIRSCW 723 : (2001) 1 Supreme 642 .

The Trial Court has properly analysed the oral and documentary evidence and has come to the conclusion that apart from immovable property allotted to him vide item No. 9 in Ex.P-8, running family business was allotted to him. This is probablised for yet another reason. The running business of the family was in the property allotted to the appellant. As could be seen from the properties owned by the family of Shankar Rao, it was an affluent family. The fact of allotting item No. 9 to the appellant is to give running business to him. It is true that nothing is shown in the partition deed about the existing family business which was run by the joint family. When the appellant has chosen to make allegation of unfair division, the defendants were obliged to explain as to why this item No. 9 alone was allotted to him. From the evidence of plaintiff examined as PW-1 allotment of family business i.e., M/s. Mahendrakar Cloth Centre is forthcoming. His own evidence discloses that he has been running the family business in the same shop. Even after effecting division in the year 1986, he has been running the shop and that is evident from the cross examination conducted on 17.3.1994. Payment of sales tax relating to the said business is admitted by him. He has further admitted that he has taken steps to recover the amount due to the shop by filing suits against the earlier customers.

It is in this regard, the First Appellate Court has held that evidence in civil cases will have to be decided on the touch stone of intrinsic probabilities. As rightly out pointed by the First Appellate Court in paragraph 28 of the judgment, the Court has to weigh the evidence to know as to in whose favour the case appears to be more probable.

Trial Court as well as First Appellate Court, on proper assessment of oral and documentary evidence and testing the same on the touch stone of intrinsic probabilities, have held that the case of defendant is more probable than that of the plaintiff and that the plaintiff has failed to prove the serious allegations of misrepresentation of facts and fraud being played on him. Partition has been entered into between the parties with eyes wide open and hence the partition cannot be reopened. It is further supported by the fact that inequality in the allotment of immovable properties is made good by allotting family business to the plaintiff.

Viewed from any angle, partition cannot be termed as unfair or unequal. Decision rendered in the case of Ratnam Chettiar is infact helpful to the defendants rather than the plaintiff.

Learned senior counsel Sri. M. Shivappa has vehemently argued that the First Appellate Court could not have rejected the application filed under Order 41 Rule 27 of CPC seeking to adduce additional evidence on behalf of the appellant-plaintiff. Certain documents were produced before the Trial Court with an application filed under Order 41 Rule 27 of CPC to adduce additional evidence in order to show that the value of the properties allotted to the defendant was quite higher than the value of the property allotted to him in Ex.P-8 vide item No. 9. First Appellate Court has assigned valid and cogent reasons to reject the said application. Leading additional evidence in the First Appellate Court or second appellate court is an exception to the general rule. The First Appellate Court has held that the allotment of immovable property appears to be unequal in so far as the share of the plaintiff is concerned. But the same is compensated by allotting family business to him and said business was run in item No. 9 of Ex.P-8.

In view of allotment of old running business of the family which was being run in the very suit property allotted to the plaintiff, First Appellate Court has come to the conclusion that no good grounds are made out to adduce additional evidence. First Appellate Court has discussed all the sub-rules of Rule 27 of Order 41 of CPC. It has further held that the documents sought to be produced as additional evidence are not required for the First Appellate Court to pronounce the satisfactory judgment.

Both the Trial Court as well as First Appellate Court have adopted right approach to the real state of affairs. They have decided the evidence on the touch stone of intrinsic probabilities keeping in mind the inability of the plaintiff to discharge the initial burden cast upon him to prove serious allegation of misrepresentation of facts and fraud played on him. Both the courts have come to the conclusion that no good grounds are made out to reopen the partition entered into between the parties.

Normally, High Court will not interfere with the concurrent findings of both the courts in an appeal filed under Section 100 of CPC. High Court can interfere with the findings of fact when findings recorded by the Courts below are perverse and re-appreciation of evidence is permissible only in exceptional cases. Both the Courts have held that the fact of the partition so entered between the sons of Shankar Rao and his deceased widow is just and equitable in the light of allotment of family business of the appellant. Both the courts have specifically held that plaintiff has failed to prove serious allegation of fraud being played on him and misrepresentation of facts.

Case on hand is not decided on the surmises and conjectures. There is no misreading of evidence. Core issue relating to allotment of properties has been decided keeping in mind the useful admissions elected from the mouth of PW-1 relating to the allotment of family business to him. No documentary evidence has escaped the attention of the Trial Court or the First Appellate Court. Core issue before the Trial Court was as to whether there was any misrepresentation of facts and whether any fraud had been played on the plaintiff. On re-appreciation of the evidence, the First Appellate Court has held that the factual finding of the Trial Court is based on sound reasoning. Another core issue that was before the courts was in regard to unequal and unfair allotment. Both the courts have held that though allotment appears to be unequal, on looking ExP-8, partition deed, same has been set right by allotment of running business to the appellant. Finding of facts arrived by the First Appellate Court is ordinarily final. The correctness has to be questioned when it is based on misreading of the same or otherwise perverse or when legal principles have not been properly applied.

Accordingly, the substantial questions of law are answered in the affirmative. Hence, the appeal has to be dismissed.

ORDER

Appeal filed under Section 100 of CPC is dismissed. The judgment and decree passed by the First Appellate Court in R.A.13/1995 confirming the judgment and decree of the Trial Court in O.S. 106/1994, is confirmed.

In view of relationship of the parties, parties to bear their own costs.