Conclusive evidence supporting claims of self-acquired property is required; mere assertions without documentation do not suffice to prove ownership against established joint family property.

JUDGMENT :

H.P. Sandesh, J.

1. This matter is listed for admission. Heard the learned counsel for the appellants and the learned counsel for the respondents.

2. This second appeal is filed against the concurrent finding. The factual matrix of the case of the plaintiff before the Trial Court that suit schedule properties belongs to the joint family and they are in joint possession and enjoyment of the suit schedule properties along with the defendants. The defendants appeared and filed a written statement and particularly defendant No.1 took the contention that there was an oral partition on 12.04.1968 and defendant No.1 also took the contention that present suit is not maintainable in view of the decision in O.S.No.80/1987 and also contend that suit is hit by Order 2 Rule 2 of CPC and further contention was taken by the defendant No.1 that item Nos.2, 6, 7 and 8 are his exclusive properties and defendant No.3 also took the specific defense that item No.7 is his self-acquired property and defendant No.4 took the specific defense that item No.2 is his self-acquired property. The Trial Court allowed the parties to lead evidence and plaintiff No.2 has been examined as P.W.1 and also examined other witnesses as P.W.2 to P.W.4 and got marked documents Ex.P.1 to Ex.P.8, but P.W.2 not subjected for cross examination and therefore evidence of P.W.2 was discarded. The P.W.3 and P.W.4 subjected themselves for cross examination by the defendant Nos.3 and 4 after the addition of defendant Nos.3 and 4. On the other hand, the defendant No.1 and defendant No.4 have been examined as D.W.1 and D.W.2 respectively and also examined two witnesses as D.W.3 and D.W.4 and got marked documents Ex.D.1 to Ex.D.21, but D.W.1 subjected himself for cross examination on 21.07.2012 and subsequently he did not appear and hence his evidence was not considered.

3. The Trial Court having considered both oral and documentary evidence comes to the conclusion that properties are the ancestral properties by answering issue No.1 as affirmative in coming to the conclusion that the suit schedule properties are the joint family properties and though took the defence that item Nos.2, 6, 7 and 8 are the self acquired properties of defendants as contended by defendant No.1, defendant No.3 and defendant No.4 and the same was answered as negative and granted the relief of partition in respect of the suit schedule properties coming to the conclusion that entitled for 1/3^rd share in all the suit schedule properties and defendant Nos.1 and 2 are also having 1/3^rd share each in the suit schedule properties.

4. Being aggrieved by the finding of the Trial Court, an appeal is filed in R.A.No.89/2013 before the First Appellate Court. The First Appellate Court having considered the grounds urged in the appeal as well as the respective submissions of both the counsels, formulated the point whether the Trial Court erred in answering the point No.1 with regard to Order 2 Rule 2 of CPC is not applicable and also whether the Trial Court committed an error in coming to the conclusion that there was no evidence of oral partition between Hanumanthappa and defendant No.1 and whether the Trial Court committed an error in answering the other issues in respect of the specific contention that item No.2, 6 and 7 are the exclusive properties of defendant Nos.1, 3 and 4 and whether it requires interference of this Court.

5. The First Appellate Court also having re-assessed both oral and documentary evidence placed on record, answered all the points for consideration as negative and confirmed the judgment of Trial Court and hence the present second appeal is filed before this Court. The main contention of the counsel appear