The burden of proving that property is ancestral and joint family property lies on the party asserting it.

This matter is listed for admission. Heard the learned

counsel appearing for the appellant.

2.

This appeal is filed challenging the judgment and

decree dated 08.02.2019 passed in R.A.No.38/2015 on the file of

the I Additional District and Sessions Judge, Bengaluru Rural

District, Bengaluru and the judgment and decree dated

21.02.2015 passed in O.S.No.1178/2005 on the file of the

Principal Senior Civil Judge, Bangalore Rural District, Bengaluru.

3.

The appellant is the plaintiff before the Trial Court

and appellant in the First Appellate Court who had filed the suit

seeking the relief of partition claiming that defendant No.1

alienated the property in the year 1979 in favour of defendant

No.4 and the said fact comes to light in the year 2005 and

hence, the suit is filed within the time and the alienation made

by defendant No.1 without the consent of the appellant herein in

respect of the suit schedule property is not binding and a share

has to be allotted in favour of the plaintiff. The Trial Court after

considering the oral and documentary evidence of both the

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parties, dismissed the suit. Being aggrieved by the judgment

and decree passed in O.S.No.1178/2005, an appeal is filed

wherein also main contention was urged that even though DW1

was admitted in the cross-examination that it was an ancestral

property, the Trial Court as well as First Appellate Court not

considered the same and passed the perverse judgment and

decree. Hence, the present appeal is filed.

4.

The learned counsel appearing for the appellant in

this appeal again reiterated the grounds urged before the First

Appellate Court that inspite of admission given by DW1, same

has not been considered and also he has raised the substantive

question of law in the appeal that the Courts below not justified

in holding that the suit schedule property is not ancestral and

joint family property and the First Appellate Court also

committed an error in not re-appreciating the material on

record. Hence, it requires interference.

5.

Having heard the learned counsel appearing for the

appellant and also on perusal of the material on record, the Trial

Court after considering the pleadings of both the parties, framed

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the issues with regard to whether the suit schedule property is

the ancestral and joint family property of the plaintiff and

defendant Nos.1 to 3 and also whether the sale deed executed

by defendant No.1 in favour of defendant No.4 dated 29.10.1979

is not binding on her in respect of her share and whether

defendants No.4 and 5 prove that suit is bad for non-joinder of

all the family properties and the Trial Court after considering

both the oral and documentary evidence answered all the issues

as negative in coming to the conclusion that the no material is

placed before the Court to show that the suit schedule property

is the ancestral and joint family property and comes to the

conclusion considering the documentary evidence that the

plaintiff has not proved that the suit schedule property is the

ancestral and joint family property or otherwise documentary

evidence prevails over the contention of the plaintiff. The First

Appellate Court also while considering the grounds urged in the

appeal formulated the point with regard to whether the Trial

Court has committed an error in coming to the conclusion that

the suit schedule property is not the ancestral and joint family

property and answered Point Nos.1 and 2 as negative in coming

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to the conclusion that the judgment and decree of the Trial Court

not warrants interference.

6.

The

main

contention

of

the

learned

counsel

appearing for the appellant that both the Courts have committed

an error in not considering the material on record particularly,

the admission given by DW1 that it is the ancestral and joint

family property. The said contention cannot be accepted in the

absence of the documentary evidence. The Trial Court as well as

the First Appellate Court on appreciation of the evidence comes

to the conclusion tha