The burden of proving joint family property rests on the party asserting it, and the absence of pleading cannot be raised in appeal if the parties knew the case and proceeded to trial on those issues by producing evidence.

CHANDRAKANTHARAJ, J,, J.

( 1 ) THIS appeal arises out of the Judgment and Decree dated 27th day of september, 1977, passed in 0 S No. 29/75 on the file of the Civi! Judge, Gadag. The appellant before us is the 1st defendant. In the course of this Judgment, we will refer to the parties by the ranks assigned to them in the trial Court.

( 2 ) THE suit was one for partition brought by the plaintiff, who is respondent-1 here. The suit plea was that she was entitled to 1/4th share in the suit schedule properties belonging to her deceased father and that the 1st defendant was her step-brother and defendants 2 and 3 were her step-sisters, being the son and daughters of her deceased father through his second wife. She sought partition fay metes and bounds and separate possession.

( 3 ) THE 1st defendant entered appearance and filed his written statement. While admitting the relationship of the defendants and the plaintiff, the 1st defendant resisted the claim on the ground that after the death of his father, on the advice of the elders, the plaintiff as well as defendants 2 and 3 agreed to execute an agreement releasing their right, title and interest in the suit schedule properties in consideration of the plaintiff and defendants 2 and 3 receiving moveables belonging to his deceased father in the form of gold ornaments, vessels, etc It was averred by the 1st defendant that defendants 2 and 3 executed such deeds of relinquishment, while the plaintiff, on one pretext or the other, postponed the execution and that now fraudulently had brought the suit for partition. He further averred that he had spent Rs. 10,000/- for the improvement of the suit schedule agricultural lands and, therefore, in the event of the suit being decreed, the plaintiff must be made liable to contribute her share of the expenses. As regards the quantum of share to which, according to the 1st defendant, the plaintiff was entitled, and having regard to the arguments submitted for the 1st defendant before us, we feel that it should be extracted as it was pleaded : "5) ^sandooi^rt fc-orfi ;3?$ !o^ aand^cs s3053 5andg3kraf (3 ^e3f^do rt and> 2jd) sysa 0 m oandtfrt 1/4 OTJ^ ^rio^a^. urt saoandcs? sdjirsd 1/8 ^^ Xriaa^zs. " in the result, he prayed for dismissal of the suit.

( 4 ) ON such pleadings, the Court below framed as many as 6 issues which are as follows :1. Whether defendant No. 1 proves that plaintiff has relinquished her share in the suit properties by taking some moveables as contended by him in para 2 of his written statement ?2. Whether defendant No. 1 further proves that he has spent Rs. 10,000/- towards improvements of the suit properties, and if yes, is he entitled to be reimbursed ?3. Whether defendant No. 1 proves that the suit is barred by time 74. Whether plaintiff is entitled to any share in the suit properties and if yes, to what share ?

( 5 ) WHETHER plaintiff is entitled to the past three years mesne profits amounting to Rs. 6,000/- ?5. Whether plaintiff is entitled to the future mesne profits and if yes, at what rate ?5. As is apparent, the burden was entirely cast on defendant-1 and those issues were held against him. The suit came to be decreed, decreeing that the plaintiff was entitled to 1/4th share and for partition by metes and bounds and for separate possession of the suit schedule properties. She was also awarded mesne profits in a sum of Rs. 3,000/- for the past 3 years and a preliminary decree was, therefore, directed to be drawn-up under Order XX of the C. P. C.

( 6 ) WHILE admitting this appeal, this court, on 29-5-1978, did not grant stay of the Judgment and Decree under appeal. Paper Books were required to be filed early and the matter itself posted for hearing early. Due to the usual delay, to which The High Courts in this country have become accustomed, the matter has not been disposed of. In view of the pendency of the appeal and the records being held up in this Court, no final decree appears to have been drawn up.

( 7 ) BEFORE us

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