The burden of proof lies on the party asserting the existence of facts, which must be substantiated by adequate evidence.

1. This appeal has been directed against the impugned judgement and decree dated 25-9-1996, passed in Civil suit No. 8-A/1994 by the First Additional Judge to the Court of Distt. Judge, Bilaspur (C.G.). By the aforesaid judgement and decree, the plaintiff's suit for partition and separate possession has been decreed by the trial Court.

2. The brief facts are that the plaintiffs, who are the successors of one Nohar Sai, filed a suit for partition and separate possession in relation to the suit house situated in village Champa, the then Distt. Bilaspur (C. G.). The plaint allegations are that Nohar Sai, Sodhu Ram and Dwarpal were the real brothers. The suit house was a joint family property. Nohar Sai was having 1/3 rd share in the suit house. In the year 1968, in lieu of recovery of a loan taken by Sodhu Ram from Kosa Bunkar Sahkari Samiti, Champa, this property was attached and was put to auction. On this action, Nohar Sai filed a suit for declaration that the property was of joint title and possession, which cannot be put to auction for recovery of loan taken by one of the owners and for other reliefs against the said Co-operative Society, the Sales Officer and the present two defendants vide Civil suit No. 1-A/1969. This suit was decreed on 12-3-1976 and it was held that the suit house was a joint family property and Nohar Sai was having 1/3rd share in it and the same was not liable to be attached and auctioned in lieu of the loan taken by the defendant Sodhu Ram. The plaintiffs claimed their share to the extent of 1/3rd in the suit property. Defendant No.1, Sodhu Ram denied the contentions of the plaintiffs. It was pleaded by him that there was a partition in the family prior to the year 1993 and the suit house, which was mortgaged with some other persons at the time of partition was given in the share of the defendant. About the said civil Suit No.1-A/1969, he pleaded that this Civil suit was filed for protecting the family property and to witness this fact, Nohar Sai executed many documents in which he admitted as to why the said civil suit was filed. He pleaded that in Documents dated 19-6-1981, 16-3-1954 and 13-1-1977, there are admissions of Nohar Sai to this effect that the suit house was the property of exclusive ownership and possession of this defendant and the plaintiff's are estopped from challenging his title. Defendant No.2 Dwarpal admitted the claims of the plaintiffs.

3. Learned trial Court framed various issues in this case and after recording the evidence of parties decreed the suit for partition holding the plaintiffs to be the joint owners of the suit house to the extent of 1/3rd share in it. It is against this judgement and decree, defendant No. 1 has filed this appeal.

4. Learned senior counsel appearing on behalf of the appellant argued that the trial Court erred in law in holding that there was no such partition in the family in which the suit house was allotted to the share of present appellant. He further argued that the trial Court failed to consider that on the basis of admissions contained in documents ex. D-1 and D-2, it was established on record that in the earlier partition in the family, this suit house was allotted to the share of this appellant and the earlier civil suit No.1-A/1969 was filed for protecting the property of the appellant and in view of these facts, the suit for partition was liable to be dismissed.

5. On the contrary, learned counsel for the respondents argued that defendant No.1 has pleaded a partition in family and the burden of providing factum of partition was on this defendant. The factum of partition ha