In partition suits, the burden of proof lies on the plaintiff to establish that the property acquired in the name of a member of the joint family is joint property.

JUDGMENT

RAGHUBIR DASH, J.

1. This appeal is filed challenging the order dated 18.10.2011 passed in I.A. No. 395 of 2009 arising out of C.S. No. 310 of 2005-I by the learned Civil Judge (Senior Division), Bhadrak partly refusing the appellant’s application under Order 39, Rules 1 and 2 C.P.C. There is no dispute that the appellant and the respondents belong to one family.

2. The appellant is the plaintiff-petitioner and the respondents are the O.Ps.-Defendant Nos. 1 to 4 before the learned lower court. The appellant as plaintiff has filed the suit for partition claiming that the plaint schedule landed properties which are recorded under Consolidation Khata Nos. 329 and 576 are the ancestral property and rest of the properties have been acquired out of the joint family nucleus. But, respondent No.1, who is the father of the appellant and of respondent Nos. 3 and 4, has managed to create some documents of acquisition in respect of some of the plaint schedule properties in his name. It is alleged that R.1 though was a State Government servant he was having no surplus personal income for acquisition of immovable properties. All the plaint schedule properties are under the joint possession and enjoyment of the family even though some properties have been acquired in the names of the appellant, the respondent No.1 and late Purusottam Senapati (father of respondent No.1). It is claimed by the appellant that he has got 1/5th share in the properties shown in the plaint schedule. It is alleged that respondent No.1 has illegally sold a portion of the plaint schedule property under Khata No. 329 of Mouza Baikunthapur to outsiders who are arrayed as defendant Nos. 7, 8 and 9 in the suit. It is further alleged that one of R-1’s sons-in-law, taking advantage of the dispute between the appellant and his father (R.1), is trying to grab valuable suit properties. So far Cuttack suit property is concerned, it is claimed that the appellant is in occupation of the suit house standing on the suit schedule land under Khata No. 330 of Mouza Cuttack city, Unit No. 38, Arunodaya Nagar. Being asked to vacate the house and being threatened to be evicted therefrom on the plea that respondent No.1 will transfer the property, the plaintiff has filed the suit and the interim application.

3. Respondents in their written statement have taken the stand that all the suit schedule properties are not the properties of the joint family. Some of them are self-acquired property of respondent No.1, acquired out of own income. The joint family nucleus was not sufficient to generate surplus income to be invested in the acquisition of the properties which have been acquired in the name of respondent No.1. Their specific plea is that the joint family had 4 to 5 acres of rain fed agricultural land usufructos whereof was not sufficient even for the maintenance of the family which consisted of as many as eight members. R-1 was a government servant and he has acquired some of the suit properties from his own income.

4. Learned trial court has asked the parties to maintain status quo in respect of the suit plot Nos. 2256, 2258, 2262 and 2278 under Khata No. 576 of Mouza-Brahmangaon and no interim protection has been granted in respect of rest of the suit properties.

5. On behalf of the appellant it is submitted that his limited prayer to restrain the respondents from creating any third party interest in a suit for partition should have been allowed by the learned trial court in order to avoid multiplicity of litigation. It is further argued by the learned counsel for the appellant that while dealing with the interim application, the learned trial court should not have categorically observed that the suit property situate in Cuttack and Bhubaneswar are self-acquired property of respondent No.1.

6. Inviting attention to the respondents application for vacation of the stay order (Misc. Case No. 759 of 2012) and the additional affidavit filed by respondent No.1 it is submitted that