The burden of proof, evaluation of evidence, and the presumption of death under Section 108 of the Evidence Act were central to the court's decision.

1. - This first appeal under Section 96 C.P.C. arises out of the judgment and decree dated 25.10.1980 passed by the learned Additional District Judge No. 1, Bharatpur, by which the learned Judge has decreed plaintiff's suit for partition of the suit property.

2. Plaintiff Nawal Kishore filed a suit for partition claiming half share in the property described in para 1 of the plaint. It was averred that plaintiff and respondent Mangal Ram are real brothers. They have been residing together in the ancestral property situated in village Kumher, which is sought to be partitioned. Defendant Mangal Ram died during pendency of suit and his legal representatives namely defendants No. 1/1 to ⅕ were brought on record.

3. Om Prakash, one of the legal representatives of late Mangal Ram contested the suit by filing written statement and denied the averments made in the plaint. It has been pleaded that they are three brothers, namely defendant Om Prakash himself, plaintiff Nawal Kishore and one Darbari Lal and the suit property is the ancestral property of the plaintiff, defendant and Darbari Lal. It has also been pleaded that in addition to the suit properties, there is one plot situated in Gur-ki-mandi, Kumher which was purchased in the name of plaintiff by the income of joint family and as such this property is also the joint property of all the three brothers. The defendant averred that the entire properties have already been partitioned among late Mangal Ram, Nawal Kishore and Darbari Lal through a family settlement dated 15.8.1962 and therefore, no question of any partition does arise. According to defendant Om Prakash, third brother Darbari Lal is alive and therefore the plaintiff could have claimed only ⅓rd share in the properties, but since partition has already taken place, the plaintiff has no share in the suit property and the suit is liable to be dismissed.

4. The plaintiff submitted rejoinder to the written statement and denied the averment made in the written statement that Darbari Lal is alive. According to him, Darbari was missing since 1966 and nothing was heard of till filing of the suit that he was alive and therefore, presumption under law would be that Darbari Lal has expired. He had no issue as he was bechalor. He also denied that the plot in Kumher was purchased by the joint income of plaintiff and defendant. The plaintiff himself had purchased the plot in Kumher by his own income and therefore, there was no question of the plot being included in the suit. He categorically denied the family settlement alleged to have taken place in 1962.

5. On the basis of pleadings. of the parties, the learned trial Court framed issues and at the conclusion of trial decreed the plaintiff's suit and declared that plaintiff would be entitled to have half share in the suit property. Hence the present appeal.

6. I have heard learned counsel for the parties and gone through the impugned judgment and the evidence on record.

7. The first question that falls to my consideration is whether the property in possession of plaintiff which was purchased in his name by the joint family income is liable to be partitioned?

8. Defendant Om Prakash in his written statement has made an averment that plot situated in Gur-ki-mandi, Kumher was purchased in the name of plaintiff by the income of joint family and therefore this property belongs to all the three brothers. That apart, he has stated in his statement that his father had purchased the aforesaid plot in the year 1951-52, in the name of his brother Nawal Kishore. Since the defendant has taken the plea that the plot in question was a joint family property, inasmuch as it was purchased by his father in the name of his brother Nawal Kishore, therefore, the burden to prove this plea was solely on the shoulders of defendant. However, except the averment made in the written statement and the statement on oath, the defendant has not produced any documentary evidence in proof of his plea that his father