4 Whether This Case Involves A ... vs Hiraben Trikambhai Prajapati & 3

1. Present appeal is directed against the judgment and Page 1 of 3 HC-NIC Page 1 of 3 Created On Wed May 04 04:57:12 IST 2016 C/SA/201/2014 JUDGMENT order dated 28.01.2013 passed by learned Additional District Judge, Kheda at Anand in Regular Civil Appeal No.38 of 2010.

2. Originally the plaintiff (appellant herein) filed a suit before learned Civil Judge (Junior Division) at Matar being Civil Suit No.10 of 1998 for partition of the disputed property on the ground that it was an ancestral property of her father and being daughter she was entitled to 1/5th share of that property. The suit filed by the plaintiff was dismissed as she was unable to prove that the property in question was in fact an ancestral property. The appellate Court confirmed this judgment. This is how the present appeal has been preferred.

3. Learned counsel for the appellant has submitted that the original plaintiff made a statement before the trial Court wherein it has been stated that the property in question was owned by her father and it was purchased in the name of her brother from ancestral funds. It is submitted that on the basis of the statement made by the plaintiff, the suit was required to be decreed by treating the property to be joint Hindu family property in the hands of her brother.

4. On the other hand, learned counsel for the respondent has submitted that the property was self-acquired property of the defendant-respondent Ramjibhai Trikambhai Prajapati who has purchased it through a sale deed in the year 1984.

5. I have considered the submissions of both sides. Admittedly, the plaintiff was required to prove her own case by cogent and convincing evidence. She was required to prove the fact that the property purchased by her brother Ramjibhai Trikambhai Prajapati was in fact ancestral property or has been purchased from the joint income of the family, which she has failed. Learned counsel has laid much emphasis on the point that the original defendant has not proved that the property was his self-acquired property. The plaintiff has to stand on her own legs. She cannot take advantage of the weakness of non-proving of nature of the property by her brother. In absence of any documentary evidence to show that the property in the hands of her brother was ancestral property or has been acquired from the funds of joint family income, no relief can be granted to the plaintiff/appellant.

6. In view of the foregoing, this Court is of the considered opinion that the trial Court and the appellate Court have not committed any illegality or perversity in recording the findings in favour of the defendant. This appeal being devoid of any merits is dismissed by upholding the impugned judgment 28.1.2013.

Sd/-

(MOHINDER PAL, J.) KMGThilake) Page 3 of 3 HC-NIC Page 3 of 3 Created On Wed May 04 04:57:12 IST 2016