The burden of proof under Section 101 of the Indian Evidence Act rests on the party asserting the affirmative, and if discharged, the onus shifts to the opposing party to disprove the circumstances. In this case, the plaintiff successfully discharged the burden of proof, entitling him to a partition of his 1/4th share in the disputed property.

JUDGMENT :

JASPREET SINGH, J.

1. This is defendant’s second appeal being aggrieved by the judgment of reversal by which the suit for partition filed by the plaintiff-respondents was initially dismissed by the court of 4th Additional Munsif Gonda vide judgment and decree dated 03.04.1986 passed in Regular Suit No.62 of 1985 was reversed and suit decreed in First Appeal No.59 of 1986 by means of the judgment and decree dated 28.01.1987.

2. The plaintiff-respondents instituted the suit for partition on the ground that the disputed property in question was purchased by means of a registered sale-deed dated 03.11.1978 alongwith the three defendants who are real brothers. It was further stated that all other properties which they got from their father was already partitioned amongst themselves around 15 to 20 years prior to the institution of the suit and it is this disputed property alone which was purchased in 1978 was the subject matter, wherein the plaintiff had 1/4th share and for the aforesaid purpose suit was instituted.

3. The defendant no.1 who is appellant before this Court filed a separate written statement and took a plea that all the properties in question were partitioned including the disputed property and the disputed property was received by the defendant no.1 in the aforesaid partition exclusively, accordingly neither the plaintiff nor the defendants no.2 and 3 had any right. The defendant no.1/appellant also pleaded that the plaintiff and other defendants had already got a share in lieu of the disputed property and since the disputed property was already partitioned, therefore, another partition was not possible.

4. The defendants no.2 and 3 filed a joint separate written statement wherein they admitted that the property was jointly purchased by the parties but the disputed property was given to the defendant no.1 in Khangi Batwara. It was stated by them that the plaintiffs and the defendant nos.2 and 3 are joint and amongst them there is no partition while the defendant no.1 had separated his share.

5. Significantly, after filing of the written statement by the defendant nos.2 and 3, they did not contest nor they led any evidence, thus primarily the suit was contested between the plaintiff-respondents and the defendant no.1 appellant.

6. The trial court framed four issues whereas issue no.2 related to the fact as to whether the property in dispute was joint between the plaintiff and the defendants and whether the plaintiff had 1/4th share therein and issue no.3 was framed on the pleadings of the defendant no.1 to the effect as to whether the defendant no.1 was the sole owner in possession of the disputed property in light of the pleadings contained in paragraphs 8, 9 and 12 of the written statement.

7. The plaintiff examined himself as P.W.1 and the defendant no.1 examined himself as D.W.1. The trial court while considering the evidence led by the parties held that the plaintiff could not establish the fact that in respect of ancestral properties, a partition had taken place about 15 to 20 years prior to the institution of the suit and rather the defence taken by the dependent no.1 was more plausible that all the properties including the disputed property had been partitioned wherein all the parties received their shares in the 1980 and thus the version of the defendant was more believable. From the reading of the judgment passed by the trial court, it appears that what prevailed in the mind of the trial court was the fact that according to the plaintiff, if the partition had occurred in respect of ancestral properties 15 to 16 years prior to the institution of the suit, then there was no cause for the parties to the suit to jointly purchase the property in 1978 and thus held that as pleaded by the defendant, a Khangi Batwara was effectuated between the parties in the year 1980 and the disputed property was received by the defendant no.1 therein and accordingly he is the owner in possession of the same. With the aforesai