The court affirmed that the burden of proof lies on the party asserting a fact, and the defendant failed to prove exclusive ownership of ancestral properties, thus entitling plaintiffs to their share.

1. This appeal under Section 100 of Code of Civil Procedure takes exception to the judgment and decree passed by the First Appellate Court in Regular Civil Appeal no. 241/1998 whereby Regular Civil Suit no. 120/1987 came to be decreed by reversing judgment and decree passed by the Trial Court dismissing the suit for partition and separate possession of the suit lands.

2. Parties are referred to by their nominclature in the proceeding for the sake of convenience.

3. Facts which led to filing of present appeal can be narrated in short as under :-

Plaintiffs are daughters of Hanwanta. Their ancestor Tatya had three sons; Hanwanta, Karbhari and Haribhau. Hanwanta had four daughters namely Tulsabai, Gangabai, Godhabai and Radhabai. Tulsabai and Gangabai are deceased. Karbhari has one son namely Bhaurao (defendant). Haribhau died issueless. It is the case of plaintiffs that when Hanwanta was visiting holy places by taking pilgrims defendant took disadvantage of possession of suit properties and mutated same in his name in the record of rights. It is also alleged that he has obtained will with regard to Gat No. 63 which stood in the name of Haribhau and after his death his wife Parubai. It is further case of plaintiffs that defendant used to give their share from the yield of the cultivation of the suit properties however, subsequently he refused to give the same and when they demanded for partition he did not concede to it. With these averments, suit for partition and separate possession came to be filed.

4. Defendant by filing written statement has admitted description of the suit properties so also did not raise any dispute with regard to the genealogy and relationship between him and plaintiffs. It is the case of defendant that he being the only surviving coparcener, the suit properties devolved upon him and were rightly recorded in his name. He also claims that Parubai, on her own through will, had bequeathed Gat No. 63 to him and pursuant thereto he has become the exclusive owner thereof. The contention of plaintiffs about any share being provided in the crop cultivated in the suit lands is denied by defendant.

5. Trial Court framed issues casting burden on defendant to prove that Hanwanta died in the year 1947 and his wife Anusayabai died thereafter in the year 1948. Issue was also framed with regard to validity of will executed by Parubai on 17th September, 1974, apart from right of plaintiffs to get partition and separate possession of suit land.

6. Plaintiffs examined plaintiff No. 1 at Exhibit 46 and also led evidence of Rustam (Exhibit 49), Ashruba (Exhibit 51) and Vaishnav (Exhibit 52). Rustam and Ashruba were examined in order to prove that Hanwanta died after 1955 whereas witness Vaishnav was examined in order to prove the certificate issued by Gram Panchayat indicating death of Hanwanta. Defendant examined himself and also led other oral and documentary evidence. Learned Trial Court dismissed the suit by holding that defendant substantiated the fact of death of Hanwanta in the year 1947 and as such being sole surviving coparcener has become the exclusive owner of the suit properties. The will executed by Parubai was also upheld.

With these observations, the suit came to be dismissed.

7. Plaintiff, being aggrieved by said judgment and decree preferred appeal being Regular Civil Appeal No. 241/1989. Learned First Appellate Court allowed the appeal by setting aside impugned judgment and decree passed by the Trial Court. It is held that plaintiffs are entitled for 1/3rd share in the suit lands bearing Gat No. 63 and 442. They were also held to be entitled to claim mesne profit as determined in inquiry under Order 20 Rule 12(1)(c) of Code of Civil Procedure . Defendant, being aggrieved by this judgment and decree, preferred this appeal.

8. Learned counsel for defendant submits that the First Appellate Court has committed error in not considering the evidence led by defendant on record so also admissions of witnesses ex