A plaintiff must provide sufficient evidence to establish joint family ownership in partition cases; lack of such evidence leads to dismissal of claims.

JUDGMENT :

V.SRISHANANDA, J.

Heard Sri R.P.Somashekharaiah, learned counsel for the appellant and Sri S.S.Hiremath, learned counsel for respondent No.2(a) to (f). None appears of the legal representatives of deceased respondent No.1.

2. Unsuccessful plaintiff in O.S.No.6725/2000 on the file of the XVIII Addl. City Civil Judge at Bengaluru City (CCH No.32) is the appellant challenging the validity of the said judgment and decree.

3. Parties are referred to as plaintiff and defendant for the sake of convenience.

4. Facts of the case in brief which are utmost necessary for disposal of the present appeal are as under:

A suit for partition and separate possession in respect of the following immovable property (hereinafter referred to as ‘suit property’) came to be filed by the plaintiff.

“The immovable property bearing Corporation No.5, situate in Cholurpalya Extension of Kempapura Agrahara, Magadi Road, Bengaluru-23, measuring East to West 40 feet, North to South 30 feet, and bounded on the:

East by : property No.6,

West by : property No.4,

North by : private property and

South by : Road.

and the said property has a small 1 square building with asbestos sheet built 50 years ago in a portion and the remaining portion is having a foundation for an intended building. The present market value of the property is Rs.1,30,000/- (rupees one lakh thirty thousand only).”

5. Plaintiff contended that he is son of Siddoji Rao. It is contended that Basoji Rao @ Siddoji Rao was the common prepositus who was working as a Police Constable and had acquired the suit property which is ancestral property.

6. It is further contended that out of the joint family nucleus, property was purchased though in the name of first defendant, the property was purchased by utilizing the joint family nucleus and therefore, property is to be construed as joint family property.

7. It is further contended that defendant Nos.1 to 3 colluded together and sold it in favour of third party i.e., defendant No.4 by virtue of sale deed which is called in question by the plaintiff seeking the following relief:

“WHEREFORE, the plaintiff most humbly prays that this Hon’ble Court be pleased to pass a judgment and decree against the defendants:

(a) to declare the sale deed entered into by the first defendant with the consent of the defendant Nos.2 and 3 in favour of the 4^th defendant on 28.08.1991 with respect to the suit schedule property on the file of the Sub Registrar, Sriramapuram, registered as document No.174/1991-92 as null and void and illegal, pertaining to the suit schedule property,

(b) to declare that the plaintiff has 1/3^rd share in the suit schedule property, and

(c) to allow the suit with costs,

(d) grant such other relief or reliefs as this Hon’ble Court may deem fit under the facts and circumstances of the case in the interest of justice and equity.”

8. Pursuant to the suit summons, defendants entered appearance and filed written statement contending that Basoji Rao acquired the suit property during his life time is incorrect. Claim of the plaintiff that he is having share in the suit property was denied by the defendants.

9. It is also contended that suit property was purchased by the first defendant out of his earnings and therefore, it is the individual property of the first defendant for which he had every right to sell the property and therefore, sale made by him in favour of the fourth defendant is a valid sale and thus sought for dismissal of the petition.

10. Based on the rival contentions of parties, learned Trial Judge framed the following issues:

“(i) Whether the plaintiff proves that the suit property was ancest