The burden of proof lies on the party asserting co-parcenary rights to establish the existence of a joint Hindu family and the fact of birth creating co-parcenary rights.

1. - This second appeal arises out of judgment whereby the District Judge Merta while dismissing plaintiff's first appeal upheld the judgment of the Civil Judge (JD) Merta who dismissed plaintiff's suit for permanent injunction having been filed by the present appellant and wherein cancellation was sought for a sale deed executed on 17.5.1980 by Sujaram (plaintiff's father who was impleaded as defendant No. 2 and died pendente suit) in favour of Shankarram (defendant No. 1 now one respondent). The plaintiff claimed the suit property as co-parcenary on the basis of a settlement alleged to have been executed on 31.12.1936 (Budi 3 Samwat Year 1993) whereby Tikuji grand father of the appellant & his co-sharer Bhagu son of Bhagwan had allegedly partitioned their joint property. It was the plaintiffs (appellant) case that he became a co-parcenary by virtue of his birth and thereby got vested right in the co-parcenary property and that after the death of his grand father (Tikuji) when he was two years old child, he and his father (Sujaram son of Tikuji) constructed co-parcenary & joint Hindu Family. It was also his case that during lifetime of Tikuji (his grand father) he (Tikuji) was the Karta and after death of Tikuji, Sujaram (his father) became the Karta while he was a member of coparcenary of aforesaid joint Hindu Family and thereby he (appellant) had been in exclusive possession of the suit land and even cultivating it for 15 years during lifetime of Sujaram (his father) prior to the institution of the suit. It was his further case that his father (Sujaram) and Baluram (real brother of Sujaram) both were maternal grand son of Tikuji whose daughter was natural mother of Sujaram & Baluram and who had no male issue, he (Tikuji) had adopted his maternal grand son Sujaram (appellant's father) in the year 1936 (Samvat Year 1993). The appellant also averred in the plaint that upon death of his mother. Sujaram (his father) while leaning interest to his own younger brother (Baluram) & Family, started neglecting him & his wife inasmuch as his father by virtue of his mental weakness & corrupt character, had indulged in causing ancestral joint Hindu property for plundering, to which he objected and whereby his father got annoyed and under misguidance of younger brother, his father executed the impugned 'sale deed' in favour of Shankarram (son of Baluram who was brother of Sujaram his father) in respect of the suit property as described in para 5 of the plaint without any consideration and his knowledge besides consent, against which the suit for cancellation has been filed out of which this appeal has arisen.

2. In written statement, the facts stated in the plaint as to the relationship between the parties were admitted but the defendants denied to the formation of joint Hindu family between plaintiff, Sujaram & Tikuji, Tikuji is alleged to have died in 1940 and after his death, there was no joint Hindu family between plaintiff and his father (defendant No. 2) inasmuch as the plaintiff used to reside separately from his father for last 10-12 years with his family at his in-law's village Khakarki. The defendant asserted that only two years before, the plaintiff & his father in-law forcibly took possession of the house of Sujaram (defendant No. 2) in village Ladwa where he has been residing for last two years. Criminal cases between the plaintiff & his father are alleged to have been pending. The field and the suit property are claimed by the defendant No. 2 as self acquired because at the time his adoption, Tikuji being not only old but also weak & infirm was not in an ownership & cultivatory possession of agricultural land and accordingly, the plaintiff had no vested right over the suit property, inasmuch as the suit property being self acquired, the defendant No. 2 had every right to dispose off it through the impugned sale deed. On the, basis of the pleadings of both the parties, the trial Court framed following issues (translate