The presumption of joint family property necessitates proof of individual ownership; without such proof, a child has a right to claim share in ancestral property.

JUDGMENT :

PARTH PRATEEM SAHU, J.

1. Heard on admission.

2. Appellant/defendant No.1 has preferred this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for brevity “CPC”) against the judgment and decree dated 9.8.2017 passed by the learned District Judge, Bemetara in Civil Appeal No. 9A/2017 thereby dismissing the appeal filed against the judgment and decree dated 1.4.2017 passed in Civil Suit No.22-A/2014 by which learned Civil Judge Class-I Bemetara (CG) has decreed the suit of respondent No.1/ plaintiff for declaration of title and separate possession after partition.

3. Facts of the case, in brief, are that plaintiff filed a civil suit seeking declaration of title; share to the extent of one-fourth in suit properties described in Schedule ‘A’, ‘B’ & ‘C’ to plaint and possession. It was pleaded that plaintiff and defendants are children born out of wedlock of Firtu and Brijbai. Land of Schedule-A admeasuring 7.63 hectare of 15 different khasra numbers, situated at PH No.38 Village Ghursena, Tahsil Nawagarh, District Bemetaera, was recorded in name of Firtu. This is ancestral land of the parties. From the income of land of Schedule-A, Firtu had purchased land of Schedule-B bearing Khasra No.578 area 0.30 hectare situated in PH No.38, Village Ghursena, Tahsil Nawagarh, District Bemetara, in the name of plaintiff and Brijbai (mother of plaintiff). Similarly, land bearing Khasra No.684 area 1.09 hectare situated in PH No.34, Village Bhopsara, Tahsil Nawagarh, District Bemetara, as described in Schedule-C, was purchased in the name of defendant No.1. After death of Firtu, plaintiff being one of legal heirs demanded her share in ancestral property, which was denied by defendant No.1. Upon inquiry, plaintiff came to know that ancestral land of Schedule ‘A’ is recorded in the name of defendant No.1 only and therefore, she filed an appeal before the Sub-Divisional Officer (R) Bemetara. It was further pleaded that plaintiff being legal heir of Firtu is entitled for equal share in the ancestral property of Schedule ‘A’ and ‘C’, partition among the family members had not taken place, plaintiff never consented for not recording her name in Patwari record nor had she relinquished her share in ancestral property or put her thumb impression on any such document.

4. Defendant No.1 filed written statement contending that the land of Schedule-A is recorded in his name since long, plaintiff failed to give description of land which she is claiming to be ancestral property. It was denied that from the income of ancestral land, any land was purchased in the name of plaintiff or their mother Brijbai. Firtu had purchased the land in name of defendant No.1 from his own income. After the death of Firtu, plaintiff had relinquished her share in ancestral property in favour of defendant No.1 as a result the entire property came to be recorded in name of defendant No.1. Plaintiff has no right, title over the property left behind by Firtu.

5. On the pleadings of the parties, learned trial Judge framed as many as five issues; given opportunity to respective parties to adduce evidence, both oral and documentary, and after a full fledged trial, decreed suit of plaintiff taking note of admission of defendant No.1 that the suit property is ancestral property, any registered document showing relinquishment of share by plaintiff in ancestral property is not produced by plaintiff, Firtu died int