The burden of proof lies on the party alleging ancestral or joint property, and without evidence to support the claim, the Courts may reject the suit.

ORDER :

1. The present Second Appeal, has been filed challenging the judgment and order dated 30.03.2019 passed by the learned 6th Additional District Judge, Vadodara whereby, the appeal filed by the appellants – original plaintiffs, came to be partly allowed and the judgment and decree dated 18.06.2018 passed by the learned 7th Additional Senior Civil Judge, Vadodara, came to be confirmed.

2. The issue, revolves around survey no.37. It is the case of the appellants – original plaintiffs that the suit property (hereinafter referred the ‘disputed land’) was an ancestral property and was in the joint ownership of the original plaintiffs and original defendant nos.3 to 6 as it belonged to Gokalbhai Bhagwandas Patel, i.e. the grandfather of the original plaintiffs. According to the appellants, the disputed land was surreptitiously sold to original defendant nos.1 and 2 by executing a registered sale deed dated 31.07.2003. According to the appellants, at the time of the sale of the suit property, the appellant no.1 – original plaintiff no.1, was minor; whereas, the original plaintiff nos.2 to 5 were not aware about the said transaction, as the consent was not obtained despite the fact that the appellant nos.2 to 5 – original plaintiff nos.2 to 5 were major. With this background that a suit being Special Civil Suit no.629 of 2011 came to be filed, inter alia, challenging the sale deed dated 31.07.2003 with a further prayer of declaration, that the disputed land, is of undivided Hindu coparcenary property of the original plaintiffs – appellants.

3. The suit, came to be rejected vide order dated 18.06.2018 and the original plaintiffs were jointly and severally held liable to pay the cost of Rs.3,000/- each under the provisions of Section 35A of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘Code’). Being aggrieved, the appellants – original plaintiffs had preferred the appeal before the appellate Court, which came to be partly allowed insofar as the cost is concerned; and on merits, the judgment and decree dated 18.06.2018, came to be confirmed. Hence, the present Second Appeal.

4. Mr Amrish K. Pandya, learned advocate appearing for the appellants submitted that the Courts below have dismissed the suit as well as the appeal mainly on the ground that the appellants – original plaintiffs, have failed to prove that the disputed land, is an ancestral property. The Courts below have failed to appreciate that the land, is the property of Gokalbhai; however, dismissed the suit on the ground that the property, belonged to defendant nos.3 to 6. It is submitted that it ought to have been appreciated that in the written statement filed by the defendant nos.1 and 2, there is a clear admission that the land was running in the name of Gokalbhai Bhagwandas Patel of which, there was revenue entry posted in the revenue record and when the factum of property being of Gokalbhai Bhagwandas Patel was admitted, there was no need for the plaintiffs to have proved the same by leading evidence.

4.1 It is further submitted that much weightage, has been given to entry no.1001 for coming to the conclusion that the land, was of the defendant nos.3 to 6 and not of Gokalbhai Bhagwandas Patel. It is submitted that when there was an admission, the said entry, ought not have been placed reliance inasmuch as, oral partition will not have any significance in the eyes of law. It is submitted that the grandfather of the original plaintiffs, i.e. Gokalbhai Bhagwandas Patel has acquired the suit property by way of succession which fact, is clear from the village form no.7/12 produced on record. It is submitted that the village form no.7/12 of the year 1953-54, makes a reference of entry no.60 which, was pertaining to the land being of the ancestors of Gokalbhai Bhagwandas Patel, and the land acquired by him was an ancestral property.

4.2 It is next submitted that the plaintiff no.1, undisputedly, was minor at the time of the execution of the sale deed. Fu