Babaji @ Bharatraj vs Gajanan
2022 Latest Caselaw 939 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 20TH DAY OF JANUARY 2022

                         BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                R.S.A.NO.974/2008 (PAR)
                          C/W
                R.S.A.NO.973/2008 (PAR)

IN R.S.A.NO.974/2008 (PAR)

BETWEEN

BABAJI @ BHARATRAJ
S/O BAPURAO @ SHANMUKH INGALEAGE
AGE : 55 YEARS OCC: SERVICE,
(STENOGRAPHER MUNSIFF AND
JMFC COURT, SINDGI)
R/O DARBARGALLI, BAGALKOT ROAD,
INFRONT OF SANGLIKAR CHAWL,
(INTERIOR) BIJAPUR-583101,
TQ: & DIST: BUJARPU.
                                           ...APPELLANT
(BY   SRI V.M.SHEELVANT &
      SRI S.H.MITTALKOD, ADVTS.)

AND

1.    GAJANAN
      S/O VITHOBA INGALE,
      AGE 65 YEARS, OCC PRIVATE SERVICE,
      R/O DARBARGALLI, BAGALKOT ROAD,
      INFRONT OF SANGLIKAR CHAWL,
      (INTERIOR)BIJAPUR,
      TQ. AND DIST. BIJAPUR.

2.    HARI S/O VITHOBA INGALE
      SINCE DECEASED BY HIS LRS.,

2(A). VIJAYKUMAR S/O HARI INGALE,
      AGE 53 YEARS, OCC: SERVICE,
      R/O PLOT NO.71, PULAKESHI NAGAR,
                            2




     MANAGOLI ROAD, BIJAPUR-586101.

2(B). SMT.SHOBHA
      W/O TULASIDAS WALAKE
      AGE 50 YEARS, OCC: HOUSEHOLD WORK,
      R/O NEAR ALLAPUR GATE FORTE,
      BEHIND HANUMAN TEMPLE,
      NEAR ASHTAPAIL BUNGLOW, J.M.ROAD,
      BIJAPUR-586101.

3.   SMT.RUKAMANI
     W/O VISHNU INGALE,
     AGE : 65 YEARS, OCC: HOUSEHOLD WORK,
     R/O : ATHANI-591304, BIJAPUR-586101.

4.   JAGANNATH S/O BHANUDAS BHOSALE,
     AGE : 62 YEARS, OCC: PRIVATE SERVICE,
     R/O NEAR MULTANIYA, BAKERY,
     KALYAN NAGAR, SOLAPUR-413007,
     MAHARASHTRA.

5.   SMT.SATYABHAMA
     D/O BHANUDAS BHOSALE,
     AGE : 59 YEARS, OCC: PRIVATE SERVICE,
     R/O NEAR MULTANIYA, BAKERY,
     KALYAN NAGAR, SOLAPUR-413007,
     MAHARASHTRA.

6.   SMT.SHAKUNTALA
     W/O SHIVAJI INGALE,
     AGE : 68 YEARS, OCC: HOUSEHOLD WORK,
     R/O JALANAGAR, BIJAPUR-586101.

7.   SMT.USHA W/O PRAMOD SHINDE,
     AGE : 37 YEARS, OCC: HOUSEHOLD WORK,
     R/O KOLEGALLI, PANDHARPUR-413403.
     MAHARSHATRA.

8.   SMT.LATA W/O POPAT DHUMALE,
     AGE : 34 YARS, OCC: HOUSEHOLD WORK,
     R/O BHAVALI TQ: PANDHARPUR-413403,
     DIST: SOLAPUR, MAHARASHTRA.

9.   ASHA W/O DHANJAYA ALAT,
     AGE : 33 YEARS, OCC: HOUSEHOLD WORK,
     R/O NO.1102, RAILWAY LINES,
     SOLAPUR-413007, MAHARASHTRA.
                             3




10.   UMA D/O SHIVAJI INGALE,
      AGE : 30 YEARS, OCC: HOUSEHOLD WORK,
      R/O DARBARGALLI, BIJAPUR-586101.

11.   VANDANA D/O SHIVAJI INGALE,
      AGE : 30 YEARS OCC: HOUSEHOLD WORK,
      R/O DARBARGALLI, BIJAPUR-586101.

12.   VISHNU S/O VITHOBA INGALE,
      AGE : 54 YEARS, OCC: SERVICE (SUPRVISOR
      TELEGRAPH'S OFFICE, ATHANI)
      R/O TELEGRAPHS EMPLOYEES HOUSING COLONY,
      NEAR RAGHAVENDRAMATH, ATHANI-591304,
      TQ: ATHANI, DIST: BELGAUM.

13.   SMT.LAXMIBAI W/O TUKARAM PAWAR,
      AGE : 51 YEARS, OCC: HOUSEHOLD WORK,
      R/O DARBARGALLI, BAGALKOT ROAD,
      INFRONT OF SANGLIKAR CHAWL (INTERIOR),
      BIJAPUR-586101.
      TQ: AND DIST: BIJPAUR.

14.   VASUDEV S/O VITHOBA INGALE,
      AGE : 49 YEARS, OCC: SERVICE (LINEMEN,
      TELEGRAPH'S OFFICE BIJAPUR),
      OCC: BEHIND KSRTC WORKSHOOP,
      BIJAPUR, TQ: AND DIST: BIJAPUR-586101.

15.   DEVENDRA S/O VOTHOBA INGALE,
      SINCE DECEASED REPRESENTED BY HIS LRS.,

15(A) SMT.REKHA W/O DEVENDRA INGALE,
      AGE : 45 YEARS, OCC: HOUSEHOLD,
      R/O DARABARGALLI, NEAR ANDU MAZJID,
      SANGLIKAR CHAWL (INTERIOR),
      BAGALKOT ROAD CROSS,
      BIJAPUR-586101.

15(B) CHANDRAKANT S/O DEVENDRA INGALE,
      AGE : 25 YEARS, OCC: AGRICULTURE,
      R/O DARABARGALLI, NEAR ANDU MAZJID,
      SANGLIKAR CHAWL (INTERIOR),
      BAGALKOT ROAD CROSS,
      BIJAPUR-586101.

15(C) SURYAKANT S/O DEVENDRA INGALE,
                             4




      AGE : 23 YEARS, OCC: AGRICULTURE,
      R/O DARABARGALLI, NEAR ANDU MAZJID,
      SANGLIKAR CHAWL (INTERIOR),
      BAGALKOT ROAD CROSS,
      BIJAPUR-586101.

15(D) SMT.SUHASINI D/O DEVENDRA INGALE,
      AGE : 21 YEARS, OCC: HOUSEHOLD WORK,
      R/O DARABARGALLI, NEAR ANDU MAZJID,
      SANGLIKAR CHAWL (INTERIOR),
      BAGALKOT ROAD CROSS,
      BIJAPUR-586101.

(BY SRI LAXMAN T MANTAGANI, ADV. FOR R.1, R3 TO R7 AND
R.9 TO R.14) (NOTICE TO R2A R2B, R8, R.15A TO R.15D:
SERVED)

      THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING THIS
COURT TO SET ASIDE THE JUDGEMENT & DECREE DATED
11.01.2008 PASSED IN R.A.NO 101/1994 ON THE FILE FAST
TRACK COURT JAMKHANDI CONFIRMING THE JUDGEMENT AND
DECREE DATED 03.10.1989 PASSED IN O.S.NO.227/1989 ON
THE FILE OF THE CIVIL JUDGE, PRINCIPAL MUNICIF, BIJAPUR.

IN R.S.A.NO.973/2008 (PAR)

BETWEEN

BABAJI @ BHARATRAJ
S/O BAPURAO @ SHANMUKH INGALEAGE
AGE : 55 YEARS OCC: SERVICE,
(STENOGRAPHER MUNSIFF AND
JMFC COURT, SINDGI)
R/O DARBARGALLI, BAGALKOT ROAD,
INFRONT OF SANGLIKAR CHAWL,
(INTERIOR) BIJAPUR-583101,
TQ: & DIST: BUJARPU.
                                             ...APPELLANT
(BY   SRI V.M.SHEELVANT,
      SRI G.S.KANNUR, &
      SRI S.H.MITTALKOD, ADVTS.)
AND

1.    GAJANAN
      S/O VITHOBA INGALE,
      AGE 65 YEARS, OCC PRIVATE SERVICE,
                            5




     R/O DARBARGALLI, BAGALKOT ROAD,
     INFRONT OF SANGLIKAR CHAWL,
     (INTERIOR)BIJAPUR-586101,
     TQ. AND DIST. BIJAPUR.

2.   HARI S/O VITHOBA INGALE
     SINCE DECEASED REPRESENTED BY HIS LRS.,

2(A). VIJAYKUMAR S/O HARI INGALE,
      AGE 53 YEARS, OCC: SERVICE,
      R/O PLOT NO.71, PULAKESHI NAGAR,
      MANAGOLI ROAD, BIJAPUR-586101.

2(B). SMT.SHOBHA
      W/O TULASIDAS WALAKE
      AGE 50 YEARS, OCC: HOUSEHOLD WORK,
      R/O NEAR ALLAPUR GATE FORTE,
      BEHIND HANUMAN TEMPLE,
      NEAR ASHTAPAI BUNGLOW, J.M.ROAD,
      BIJAPUR-586101.

3.   SMT.RUKAMANI
     W/O VISHNU INGALE,
     AGE : 65 YEARS, OCC: HOUSEHOLD WORK,
     R/O : ATHANI-591304, BELGAUM.

4.   JAGANNATH
     S/O BHANUDAS BHOSALE,
     AGE : 62 YEARS, OCC: PRIVATE SERVICE,
     R/O NEAR MULTANIYA, BAKERY,
     KALYAN NAGAR, SOLAPUR-413007,
     MAHARASHTRA.

5.   SMT.SATYABHAMA
     D/O BHANUDAS BHOSALE,
     AGE : 59 YEARS, OCC: PRIVATE SERVICE,
     R/O NEAR MULTANIYA, BAKERY,
     KALYAN NAGAR, SOLAPUR-413007,
     MAHARASHTRA.

6.   SMT.SHAKUNTALA
     W/O SHIVAJI INGALE,
     AGE : 68 YEARS, OCC: HOUSEHOLD WORK,
     R/O JALANAGAR, BIJAPUR-586101.

7.   SMT.USHA W/O PRAMOD SHINDE,
     AGE : 37 YEARS, OCC; HOUSEHOLD WORK,
                             6




      R/O KOLEGALLI, PANDHARAPUR.
      MAHARSHATRA.

8.    SMT.LATA W/O POPAT DHUMALE,
      AGE : 34 YEARS, OCC: HOUSEHOLD WORK,
      R/O BHAVALI TQ: PANDHARPUR-413403,
      DIST: SOLAPUR, MAHARASHTRA.

9.    ASHA W/O DHANANJAY ALAT,
      AGE : 33 YEARS, OCC: HOUSEHOLD WORK,
      R/O NO.1102, RAILWAY LINES,
      SOLAPUR-413007, MAHARASHTRA.

10.   UMA D/O SHIVAJI INGALE,
      AGE : 30 YEARS, OCC: HOUSEHOLD WORK,
      R/O DARBARGALLI, BIJAPUR-586101.

11.   VANDANA
      D/O SHIVAJI INGALE,
      AGE : 30 YEARS OCC: HOUSEHOLD WORK,
      R/O DARBARGALLI, BIJAPUR-586101.

12.   VISHNU
      S/O VITHOBA INGALE,
      AGE : 54 YEARS, OCC: SERVICE (SUPRVISOR
      TELEGRAPH'S OFFICE, ATHANI)
      R/O TELEGRAPHS EMPLOYEES HOUSING COLOY,
      NEAR RAGHAVENDRAMATH, ATHANI-591304,
      TQ: ATHANI, DIST: BELGAUM.

13.   SMT.LAXMIBAI
      W/O TUKARAM PAWAR,
      AGE : 51 YEARS, OCC: HOUSEHOLD WORK,
      R/O DARBARGALLI, BAGALKOT ROAD,
      INFRONT OF SANGLIKAR CHAWL (INTERIOR),
      BIJAPUR-586101.
      TQ: AND DIST: BIJPAUR.

14.   VASUDEV S/O VITHOBA INGALE,
      AGE : 49 YEARS, OCC: SERVICE (LINEMEN,
      TELEGRAPH'S OFFICE BIJAPUR),
      OCC: BEHIND KSRTC WORKSHOOP,
      BIJAPUR, TQ: AND DIST: BIJAPUR-586101.

15.   DEVENDRA
      S/O VOTHOBA INGALE,
      SINCE DECEASED REPRESENTED BY HIS LRS.,
                             7




15(A) SMT.REKHA
      W/O DEVENDRA INGALE,
      AGE : 45 YEARS, OCC: HOUSEHOLD,
      R/O DARABARGALLI, NEAR ANDU MAZJID,
      SANGLIKAR CHAWL (INTERIOR),
      BAGALKOT ROAD CROSS,
      BIJAPUR-586101.

15(B) CHANDRAKANT
      S/O DEVENDRA INGALE,
      AGE : 25 YEARS, OCC: AGRICULTURE,
      R/O DARABARGALLI, NEAR ANDU MAZJID,
      SANGLIKAR CHAWL (INTERIOR),
      BAGALKOT ROAD CROSS,
      BIJAPUR-586101.

15(C) SURYAKANT
      S/O DEVENDRA INGALE,
      AGE : 23 YEARS, OCC: AGRICULTURE,
      R/O DARABARGALLI, NEAR ANDU MAZJID,
      SANGLIKAR CHAWL (INTERIOR),
      BAGALKOT ROAD CROSS,
      BIJAPUR-586101.

15(D) SMT.SUHASINI
      D/O DEVENDRA INGALE,
      AGE : 21 YEARS, OCC: HOUSEHOLD WORK,
      R/O DARABARGALLI, NEAR ANDU MAZJID,
      SANGLIKAR CHAWL (INTERIOR),
      BAGALKOT ROAD CROSS,
      BIJAPUR-586101.

(BY SRI LAXMAN T MANTAGANI, ADV. FOR R.1, R3 TO R7 AND
R.9 TO R.14) (NOTICE TO R2A R2B, R8, R.15A TO R.15D ARE :
SERVED)

      THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING THIS
COURT TO SET ASIDE THE JUDGEMENT & DECREE DATED
11.01.2008 PASSED IN R.A.NO 101/1994 ON THE FILE FAST
TRACK COURT, JAMKHANDI CONFIRMING THE JUDGEMENT AND
DECREE DATED 03.10.1989 PASSED IN O.S.NO.227/1989 ON
THE FILE OF THE CIVIL JUDGE, PRINCIPAL MUNICIF, BIJAPUR.

     THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                          8




                                  : JUDGMENT :

The captioned second appeals are filed by the

plaintiff questioning the judgment and decree of the

First Appellate Court which has modified the judgment

and decree of the Trial Court by dismissing the suit

insofar as Schedule-B properties are concerned.

2. It would be useful for this Court to refer the

genealogy of the family between the parties, the same

is as follows:

PROPOSITOR BAPU (Had three sons and one daughter) Son Son Son Daughter Dattu Vithoba Babaji Harnabai (Died (Died durin (Died during (Died Issueless. 1962) 1924) issueless)

1st wife Dhondibal Wife Godibal (Died, issueless) (Died, during 1968

2nd Wife Durapatabai Daughter Son Daughter Died during 1972) Bhagirathi Bapurao Shevantabai @ Bhagubai @ Shanmukh (died, during 1985) Son son dtr. Son son dtr. Son Son Gajanan Hari Shantha Shivaji Vishnu Laxmibai Vasudev Devendra (D1) (D2) (D3) (D4) (D5) (D6) (D7) (D8) Wife Rukminibai (Died, during 1950) (Had only one son to them)

Babaji @ Bharatraj(Plainitff)

3. The present appellant/plaintiff claims that he

represents Babaji's branch. Propositus Bapu had four

sons by name Dattu, Vithoba, Babaji and Harnabai. In

the family tree, it is shown that the elder son Dattu and

daughter Harnabai died issueless. Therefore, the

contest is only between two branchs i.e., Vithoba

Branch which is represented by defendants and Babaji

branch which is represented by plaintiff. The

appellant/plaintiff filed a suit for partition and separate

possession in O.S.No.227/1989. The appellant/plaintiff

contended that the propositus Bapu had inherited

ancestral house bearing CTS No.699 which is referred

as Schedule-A to the Plaint. The appellant/plaintiff

contended that after death of propositus Bapu, his legal

heirs namely Vithoba and Babaji inherited Schedule-A

property. It is the specific case of appellant/plaintiff

that Vithoba and Babaji while living jointly have

purchased Schedule-B property with the aid of joint

family funds for consideration of Rs.250/- through a

registered sale deed way back in the year 1919. The

appellant/plaintiff contends since Vithoba was the

manager of the joint family, the sale deed was

registered in his name. However, the appellant/plaintiff

contends that, though the sale deed was registered in

the name of Vithoba, however Schedule-B was

purchased by utilizing joint family funds and therefore it

is joint family ancestral property and appellant/plaintiff

representing branch of Babaji is entitled for half share

in the Schedule-B property also.

4. The grievance of the appellant/plaintiff is

that since he is residing at Bijapur, it is contended that

respondents/defendants are taking undue advantage

and therefore he was compelled to file a suit for

partition and separate possession. The said suit was

contested by the respondents/defendants by stoutly

denying the entire averments made in the Plaint.

Respondents/defendants specifically contended that it is

only Schedule-A property which is a residential house

which is ancestral property of appellant/plaintiff and

respondents/defendants. However, respondents/

defendants stoutly denied that Schedule-B property is

also joint family ancestral property. It was specifically

contended that Schedule-B property was purchased by

Vithoba from his self earnings and therefore no share

can be granted to the appellant/plaintiff in the

Schedule-B property. The respondents/defendants

further specifically averred in the written statement

that both the brothers i.e., Vithoba and Babaji were

living separately and they had independent transaction.

It is also specifically pleaded in the written statement

that after marriage, Vithoba and Babaji started residing

separately and therefore question of joint nucleus and

there by purchasing Schedule-B property jointly would

not arise at all. On these set of pleadings

respondents/defendants sought for dismissal of the

suit.

5. The Trial Court having assessed oral and

documentary evidence has answered Issue No.1 in the

affirmative and Issue No.2 in the negative and has

proceeded to decreed the suit granting half share to

appellant/plaintiff in the both the properties.

6. The respondents/defendants feeling

aggrieved by the judgment and decree of the Trial

Court in granting share in Schedule-B property also

preferred appeal before the First Appellate Court in

R.A.No.101/1994. The Appellate Court on re-

appreciation of oral and documentary evidence, has

reversed the finding of the Trial Court. The Appellate

Court having independently assessed the oral and

documentary evidence has meticulously referred to all

the documents which were placed on record by the

appellant and respondents. The Appellate Court has

taken note of the sale deed registered in the name of

Vithoba pertaining to Schedule-B property. The

Appellate Court while examining Ex.P.3 which is a sale

deed pertaining to Schedule-B property, which is of the

year 1919, the Appellate Court has also meticulously

examined the cross-examination of appellant/plaintiff.

In cross-examination, the respondents/defendants have

succeeding in eliciting that Vithoba and Babaji were in-

fact doing coolie work. Taking note of this material

aspect, the Appellate Court was of the view that the

family of appellant/plaintiff and respondents/defendants

at the relevant point of time did not possess joint

nucleus and also did not possess joint family property

which yielded income. The Appellate Court has further

examined the sale transaction entered into by

grandfather of plaintiff herein pertaining to Sy.No.10

during the year 1917. The Appellate Court has also

taken judicial note of the fact that after death of Babaji,

his widow Godabai and son have sold Sy.No.10 way

back in the year 1946. The Appellate Court on re-

appreciation of evidence has also taken a different view

insofar as sale pertaining to Sy.No.10 as per Ex.D.3 is

concerned. The Appellate Court was of the view that,

the Trial Court has misread the evidence and has come

to conclusion that Vithoba was also signatory to Ex.D.3.

7. However, on re-appreciation, it was found

that defendants' ancestor namely Vithoba was not at all

party to Ex.D.3. On re-appreciation of oral and

documentary evidence, the Appellate Court has come to

conclusion that family of appellant/plaintiff and

respondents/defendants did not constitute an undivided

joint family, they did not possess properties which

generated surplus income from which two brothers

could have invested the said income to purchase

Schedule-B property. On the contrary PW.1 in the

cross-examination has admitted that both the brothers

were doing coolie work.

8. On perusal of the judgment under challenge,

I would find that the families of appellant/plaintiff and

respondents/defendants possessed one ancestral

house, which is not in dispute. If the family of

appellant/plaintiff and respondents/ defendants

possessed only an ancestral house, then the theory set

up by the appellant/plaintiff in the plaint that the joint

income was utilized to purchase schedule-B property

cannot be believed. If the evidence on record indicates

that it is not only Vithoba who had purchased Schedule-

B property, but Babaji also during his life time has

purchased some properties which were sold by his legal

heirs after his death, the same is forthcoming in sale

deed executed by widow of Babaji and his son namely

Bapurao.

9. It is a trite law that through there is a

presumption in regard to existence of a joint family,

however a property cannot be presumed to be a joint

family, property. Merely because of existence of a joint

family burden to prove it to be a joint family property

lies on the person who asserts it. Initial burden is

always on the plaintiff to show that the family possess

of sufficient nucleus and it is with the aid of the joint

family funds, the properties are acquired and it is only

then that the presumption would be that property is

joint and onus shift upon the person claiming it to be

self acquired. This Court and the Apex Court in catena

of judgments have held that there is a no presumption

that the property is joint family property even when

there is presumption of a joint family. Therefore

property held by a member cannot be presumed to be

joint family property and the person alleging must

prove sufficient nucleus and absence of separate fund

of the acquirer to acquire the property. It is only when

nucleus is proved, the property acquired in the name of

a 'kartha' or in the name of a person in management of

joint family property shall be presumed to be the joint

family property. Therefore, what emerges from these

principles is that it is only after possession of an

adequate nucleus is shown, the onus shifts on to the

person who claims the property as self acquired to

show that he has purchased the property in question

with his individual resources and without the help of

family assets. In the present case on hand admittedly,

the family of plaintiff and defendant only owned one

ancestral house. Therefore both the courts have

pointed out that plaintiff has failed to prove that there

was a family nucleus and the said family nucleus was

sufficient to purchase the property. In the present case

on hand the onus never shifted on the respondents-

defendants to prove that their ancestors purchased

from their individual income. Therefore inevitable

conclusion in the present case would be that properties

which were purchased by defendants' ancestor were

never acquired with the aid of joint family fund as the

family did not possess nucleus.

10. The residential house admittedly would not

generate any income as that would be occupied by joint

family members. The question of presumption also

would not arise in the present case on hand because it

is the grandson of Babaji who is asserting that the

properties are joint family ancestral properties. As we

go down the degree, the presumption stands diluted

and the same is not at all available. The clinching

rebuttal evidence which is placed on record by the

respondents/defendants would clearly establish that

there was no joint nucleus, the family did not possess

any property which would have yielded surplus income

which could have been saved and utilized for

purchasing properties.

     11.    Therefore,     I   am     of   the   view    that    the

judgment        and   decree   of    the   Appellate     Court    in

decreeing the suit of the appellant/plaintiff only in

respect of Schedule-A property is based on the

evidence on record. I do not find any infirmities or

illegalities in the judgment and decree of the Appellate

Court in dismissing the suit insofar as Schedule-B

property is concerned. If the sale deed of the year

1919, at this juncture the question of examining

whether it was purchased by utilizing joint family fund

would be a futile effort. Babaji during his life time never

asserted his right in his brother's property. It appears

grandson has made a feeble attempt and has taken

chance by filing the present suit. There is no even

slender evidence to examine and test whether the sale

deed registered in the name of Vithoba pertaining to

Schedule-B property out of joint family funds. There is

absolutely no materials on record, the Appellate Court

has rightly appreciated oral and documentary evidence

and has come to conclusion it is only Schedule-A

property which is available for partition, I do not find

any infirmities and illegalities. No substantial question

of law arises. Accordingly the appeal is devoid of merits

and the same stands dismissed.

12. The connected RSA.No.973/2008 is filed

claiming mesne profit in respect of Schedule-A

property. It is nobodies' case that Schedule-

A property is the rented or which was utilized for any

other purpose which could have generated income. If

the property is utilized by family members, both the

Courts have rightly dealt with the issue and declined to

grant mesne profit in respect of Schedule-A property.

Concurrent findings recorded by the Courts below

declining to award mesne profit cannot be examined

under Section 100 of CPC.

13. Accordingly, the appeal does not warrant

any substantial question of law and the same also

stands dismissed.

Sd/-

JUDGE EM