The burden of proving prior partition lies with the party claiming its existence, and failure to produce relevant documents may lead to an adverse inference. The duty to lead the best evidence and the adverse inference under Sec. 114(G) of the Indian Evidence Act are crucial legal principles established in the judgment.

JUDGMENT/ORDER

1. The captioned second appeal is filed by plaintiff questioning the divergent findings of the Courts below, wherein, the appellate Court has reversed the judgment and decree of the trial Court and suit for partition filed by the plaintiff is dismissed by the appellate Court. The cross objection is filed by defendant No.2 questioning the judgment and decree of the appellate Court.

2. For the sake of convenience, the parties are referred to as per their ranks before the trial Court.

3. The family tree is as under: Devindrappa (D-2) Laxmibai (wife) Totamma Channamma (D-1) (Plaintiff)

4. The plaintiff and defendant No.1 are daughters of defendant No.2 - Devindrappa. The plaintiff claims to be the younger sister of defendant No.1. It is specifically pleaded in the plaint that defendant No.2 had no male issues and the plaintiff and defendant No.1 together constitute an undivided joint Hindu family. The plaintiff has also alleged in the plaint that defendant No.1 though daughter is the Kartha of the family and she is managing the ancestral properties. The plaintiff further alleged that till 2007, defendant No.2 was managing the suit schedule properties. It is further alleged that defendant No.1 has created a fabricated document to grab irrigated lands bearing Survey Nos.53/1 and 53/2 and under the concocted documents defendant No.1 claims that dry land bearing Survey No.48/2 is allotted to the plaintiff's share. The plaintiff has further alleged that defendant No.1 has highhandedly got her name mutated to the suit properties and therefore, plaintiff requested defendant no.1 to effect partition by meets and bounds. Inspite of repeated requests, defendant No.1 did not give heed to the requests and therefore, the present suit for partition.

5. Defendant No.1 appeared and contested the proceedings by filing written statement while defendant No.2 was placed exparte. Defendant No.1 stoutly denied the entire averments made in the plaint. Defendant No.1 on the contrary at paragraph No.6 raised a plea of prior partition between the family members and contended that defendant No.2 under a partition deed has allotted a specific properties to plaintiff and defendant No.1 and accordingly, mutation is effected and therefore set up a plea of prior partition and sought for dismissal of the suit.

6. The plaintiff to substantiate her claim examined herself as PW.1 and two independent witnesses were examined as PWs.2 and 3 and adduced documentary vide Exs.P1 to P9 while defendant No.1 examined herself has DW.1 and two independent witnesses as DWs.2 and 3 and did not produce any documentary evidence to substantiate her defence.

7. The trial Court in the absence of rebuttal evidence indicating that defendant No.2 has effected partition under registered document answered issue No.2 in the negative and held that suit schedule properties are joint family ancestral properties and defendant No.1 has failed to prove the alleged prior partition set up in the written statement. Consequently, suit was decree granting 1/3rd share to the plaintiff.

8. Feeling aggrieved by the judgment and decree of the trial Court, defendant No.1 preferred an appeal before the appellate Court. The appellate Court having independently assessed the oral and documentary evidence has placed reliance on the admissions elicited in the cross examination of the plaintiff. Referring to the admissions elicited in the cross examination, the appellate Court found that there is clear evidence indicating that there is a partition between plaintiff and defendant No.1 and an adverse inference is also drawn against the plaintiff as defendant No.2, who is the father of plaintiff and defendant No.1 has not entered into witness box and deposed in favour of the plaintiff to support her plea. The appellate Court has also casted burden on the plaintiff to prove that partition deed is set up by defendant No.1. The appellate Court held that trial Court has erred in not framing any issue in r