The burden of proving that a particular item of property is a joint family property rests entirely on the plaintiff who claims it to be so.

JUDGMENT :

P.C. Misra, J. - The defendants in Title Suit No. 77 of the 1971 of the Court of the Subordinate Judge, Aska, are the appellants in this appeal. The suit is one for partition of the suit properties described in the plaint schedule into two equal shares and fox allotment of one of such share to the plaintiff.

2. The admitted genealogy showing the relationship amongst the parties is given below for the better appreciation of the cases of the respective parties:

Sridhar ' Sindhu Padhan

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_____________________________________________

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Brundaban (D. 1) Natha

-Kautiki (D. 5) |

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_________________________________ 3 Krishna (Plff.)

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Ramachandra Hari Charan

(D.2) (D.3) (D.4)

The above genealogy would show that the plaintiff represents the branch of Natha whereas the defendants represent the branch of Brundaban. The plaintiff's case is that Natha and Brundaban were members of a Hindu joint family and the plaintiff's father Natha died in a state of jointness at an early age. The plaintiff was an infant at the time of the death of his father who was being looked after by his uncle Brundaban. It is alleged that Brundaban-defendant No. 1 was the manager of the family consisting of the plaintiff, his mother and others and he was managing all the joint family properties as the Karta thereof. The family at that time had about 70 Bharans of land which was more than sufficient for the maintenance of the family. The plaintiff alleges that there was surplus out of the income of the said properties and defendant . No. 1 purchased some properties which are included in the plaint schedule. The plaintiff's further allegation is that out of the acquired properties, an extent of Act. 1. 30. decs. had been purchased in the year 1941 by his grandfather, Sridhar and one Raghunath. Das of Mujagada jointly. But later on, in the year 1952 the half interest of Raghunath Das was purchased by defendant No. 1 and thus, the entire Ac. 1. 30 decimals of land became the family property. The plaintiff came of age in the year 1958, when he demanded partition of the family properties. Defendant No. 1 claimed some of the family properties as belonging to his wife exclusively. The plaintiff alleges that due to the dissensions in the family, a tentative allotment was made on 7. 6. 1968, but later on the defendants forcibly occupied the entire Ac. 1. 30 decs. of land which was purchased in the year 1941. The defendants having not agreed for a final settlement, the plaintiff has been compelled to file the suit.

3. The defendants have filed a joint written statement denying all the plaint allegations. They claim that all the properties described in the plaint schedule are not joint family properties and are . not liable for partition. They have specifically denied that there was any surplus out of the joint family lands and, according to the defendants, none of the properties acquired were out of the said alleged surplus. They take a specific plea that soon after the death of the plaintiff's father-Natha in or about the year 1952, there was a partition of the, family properties in which two Bharans of land was allotted to the share of the first defendant as 'Jesthansa' and the remaining properties were allotted equally to the plaintiff and defendant No. 1. They assert that no property was allotted to Sridhar in that partition and it was decided that the plaintiff and the first defendant would each give one cart-load of paddy for his maintenance. According to the defendants' each of the parties separately enjoyed their respective shares thereafter and the plaintiff being then a minor, his grandfather Sridhar was looking after the person and the properties of the plaintiff. The defendants plead that subsequent to the partition the first defendant purchased the land, which the plaintiff claims to have been acquired in the year 1941, in the year 1952 under two registered sale deeds out of his own funds. Similarly, defen