JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned Ad hoc Additional District Judge, (FTC), Balasore in T.A. No. 21 of 2002/40 of 2000 reversing the judgment and decree passed by the learned Additional Civil Judge (Junior Division), Balasore in T.S. No. 10 of 1993/06 of 1997. The respondent as the plaintiff had filed the suit for a preliminary decree for partition of the suit land allotting him 7/24 share over it with other relief of injunction etc. The suit having been dismissed, he being the unsuccessful plaintiff had carried the first appeal under section 96 of the Code of Civil Procedure. The said appeal having been allowed and thus the suit when has been preliminarily decreed granting the plaintiff 7/24th share over the suit property, the present second appeal has come to be filed by the defendant-appellants being aggrieved by the same. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiffs’ case is that Paramananda Mohapatra his sons who are the plaintiff, the defendant nos.1 and 2 and defendant nos.5 to 14 were in joint mess and estate. The defendant no.1 being the eldest member as karta was looking after the joint family property and he was in charge of management of the properties having full control over the same as well as family funds and expenditure having no such source of income of his own. It is stated that in the year 1963 while acting as such in the family with malafide intention by taking advantage of the simplicity of other members of the family, he managed to purchase the suit land in his own name siphoning the joint family funds and utilizing the same in that transaction, as the surplus income of the joint family nucleus was remaining with him. It is next stated that the parties were jointly possessing the suit land and there has never been partition of the same in metes and bounds. 4. Defendant no.1 coming to contest by filing the written statement inter alia pleaded that the property is his exclusive property and has been purchased from out of his own income without taking any aid from the joint family fund. 4. Defendant no.1 coming to contest by filing the written statement inter alia pleaded that the property is his exclusive property and has been purchased from out of his own income without taking any aid from the joint family fund. According to him, he was not living in joint mess with other members of the family and being in service, he had no time even to look after the family property. The acquisition of the property is said to be his self acquisition way back in the year 1963 and 1970. It is his case that he himself had paid the consideration from his own income as well as from his wife’s personal savings. He further states that at that time, the joint family property was not at all sufficient to run and manage the family and there was remaining no surplus from out of it after meeting the expenses and other pressing need. It is also his case that he had constructed a house over there after getting the sanctioned plan passed by the municipal authority and accordingly, holding tax having been assessed in his name, he was paying the same alone. Similarly having taken the electric connection, he was bearing electricity charges. He has further stated that the defendant no.2 has acquired some homestead land in that very township and so also the plaintiff over which he has no claim and nor has ever so levied. Therefore, when their properties stood insulated, now according to him, the move is sheerly to harass the plaintiff in grabbing his property so as to cause deprivation to him in that front. 5. The trial court with above rival pleadings, framed in total six issues. First going to issue nos. 3, 4 and 6 together which concern with maintainability and the partibility of the land, after analysis of evidence both oral and documentary and taking a cumulative view, has recorded the finding that it is the exclusive property of defendant no.2 which he himself had acquired wherein others have nothing to do. Practically, the answers to those issues have decided the fate of the suit which ended in dismissal. 6. The lower appellate court has reversed this finding and as it appears by going through the evidence at its level and upon their evaluation. Practically, the answers to those issues have decided the fate of the suit which ended in dismissal. 6. The lower appellate court has reversed this finding and as it appears by going through the evidence at its level and upon their evaluation. This is seriously under challenge for having been so rendered contrary to the weight of evidence being not appreciated in their proper perspective in the light of the settled legal principles and thus is attacked that the same suffers from the vice of perversity. This reversal of the above finding having resulted in granting the plaintiff with the relief of preliminary decree in his favour is now called in question in this second appeal. 7. The appeal has been admitted on the following substantial questions of law as mentioned in ground nos. 13(A) to (E) which are reproduced herein below :- “(A) Whether recording and considering evidence without pleading is liable to be ignored? (B) Whether acquisition of property by a coparcener of a joint family having separate income is presumed to be his self-acquired property in absence of pleading about extent of joint family nucleus and extent of surplus? (C) Whether oral evidence about extent of joint family property is inadmissible under sections 91 and 92 of the Evidence Act? (D) Whether the observations and findings in the judgment of reversal are contrary to record based on surmises and conjectures? (E) Whether the judgment of reversal is contrary to AIR 1964 Ori. 75 para-15 (D.B.), 1985 (1) OLR 186 (Paras 7 and 8) (D.B.) and AIR 1969 SC 1076 (Paras 6 and 7)?” 8. All the above refer to the answer recorded by the trial court as regards the nature of suit property and in its partibility which has been reversed by the lower appellate court and centers round the point whether the suit property is the joint family property available to the members of the family for having their shares therein or it is the self acquired property of the defendant no.1 alone being purchased without the aid of joint family income or fund which was remaining surplus income from the joint family nucleus after meeting all such expenditure at his hand. 9. Learned counsel for the appellant contends that the very approach of the lower appellate court in going to appreciate the evidence is totally faulty and the outcome is wholly erroneous. 9. Learned counsel for the appellant contends that the very approach of the lower appellate court in going to appreciate the evidence is totally faulty and the outcome is wholly erroneous. According to him, the lower appellate court has proceeded keeping in mind as if it is the settled position of law that when even some extent of joint family property is shown and the purchased property in the name of any member, is claimed to be the joint family property by other members, the burden of proof rests upon the purchaser-member of the family to establish that he has purchased from out of his own income or source. Placing the depositions of the witnesses, he points out that how the evidence has not been properly appreciated by the lower appellate court by taking a view which does not get expressed therefrom. According to him, when other members of the family are enjoying the property of the family, this appellant’s purchased property is sought to be partitioned merely to cause serious trouble in his living with family. It is his further contention that the lower appellate court has not applied properly, the settled principles of law right from appreciating the evidence till arrival at the destination in arriving at the conclusion which clearly suffers from the vice of perversity. Thus, he urges that the substantial questions of law need be answered in favour of the appellant. 10. Learned counsel for the respondents on the other hand supports the findings of the lower appellate court. According to him, the error committed by the trial court in not properly recording the findings on such crucial issue has been rightly rectified by the lower appellate court and no perversity surfaces therein. Proceeding to record the answers on all the substantial questions of law as stated above, it is seen that all those practically concern with one factual aspect as regards the nature of suit property and in its partibility. This exercise here therefore has to be made keeping in mind the settled position of law and accordingly by examining the correctness of the conclusion of the lower appellate court in that touch stone. 11. Let us now usefully refer to the settled position of law. There is no presumption that a family, because it is joint, owns joint family property or any property whatsoever. 11. Let us now usefully refer to the settled position of law. There is no presumption that a family, because it is joint, owns joint family property or any property whatsoever. Thus, in a suit for partition, the burden of proving that a particular item of property is joint family property rests entirely on the party who claims it to be so. In order to establish that the acquisition of any property in the name of any of the individual member of the coparcenery was, in fact, the joint family property, the plaintiff must prove that the family was possessed of some property, the surplus, out of the income of which, was sufficient for the acquisition of the said property by the joint family. Once it is established that the joint family had the property from out of the income of which there was surplus, sufficient for the acquisition of other properties, keeping in view the value of such properties, the presumption arises that it is the joint family property which has been so acquired, notwithstanding the acquisition in the name of any individual member. The said presumption is rebuttable by showing that the property was the separate and self-acquired property of the particular member in whose name it stands or so acquired. The aforesaid presumption of law is available in case of acquisition in the name of a coparcener, i.e. a male member of the joint family. 12. In the instant case, in view of the reversal of trial court’s finding of fact by the lower appellate court now the matter stands for examination in this appeal at the behest of the defendants who has suffered from the preliminary decree is as to whether the view taken by the lower appellate court at the ultimatum is founded upon correct application of the settled position of law and whether the entire exercise of scrutiny of evidence has been taken up in arriving at the final conclusion is in consonance with the said principles of law. Only, if the answer comes in the negative, then the same being termed as perverse it would call for interference. 13. The sale deed in question is dated 20/21.02.1963 and dated 11.03.1970. The land covered under the said purchases adjoin one another. Only, if the answer comes in the negative, then the same being termed as perverse it would call for interference. 13. The sale deed in question is dated 20/21.02.1963 and dated 11.03.1970. The land covered under the said purchases adjoin one another. The first one is concerned with the land to the extent of Ac0.32 decimals and the second one covers the land measuring Ac0.03 decimals. The plaint averments mainly with regard to the claim are at para-3 and 4. For proper appreciation, the necessity is felt for their reproduction which is so done as under:- “3. That, the defendant no.1 had no source of income in the year of 1963 and while acting as ‘karta’ of the family with a malafide intention by taking of the advantage of simplicity/innocency of this plaintiff and defendant no.2 and defendant no. 5 to 15, he surreptitiously managed to purchase the suit land in his name from the joint family nucleus. 4. That, this plaintiff and defendant no. 1 and 2 and 5 to 14 were/are jointly possessing the suit land peacefully and without any interruption by constructing a residential structure there upon and residing there on with his family members and accordingly this plaintiff and defendant no. 1 and 2 and 5 to 14 were/are consuming electric energy under defendant nos. 3 and 4 vide consumer No.D-25-A-6/4669 since from 1969 and by paying electric dues there under.” The defendant no.1’s corresponding reply are at paras 5, 6 and 7 of the written statement and other factual aspects as stated given in paras 14, 15 and 16 are also found to be having material bearing in this case together with the detail facts stated by way of elaboration in para 18 and 19 of the written statement. 14. Admittedly, plaintiff has played no role during the sale deeds. The first sale deed being dated 20.02.1963, the plaintiff at that time was fourteen years old when their father was very much alive and was the Karta of the family. Father retired as Post Master only in the year 1975 and died in the year 1990. During the life time of his father, the plaintiff’s wife has purchased some property from him in the year 1976. Father retired as Post Master only in the year 1975 and died in the year 1990. During the life time of his father, the plaintiff’s wife has purchased some property from him in the year 1976. The plaintiff himself while being examined as P.W.1 has said to have so purchased it by payment of consideration to his father and that it is he who has paid it. Admittedly, houses are standing over the property in the said suit. The defendant no.1 had got the plan approved from the Municipality and the holding stands in his name, as also the electric and water connections. During the settlement operation, this plaintiff has never laid any claim over the suit property. 15. It is there in the evidence that only after the death of the father of the parties, the defendant no.1 being the eldest male member of the family stepped into his shoes. But he was then staying at Balasore having joined in the service there. The brothers were staying in separate mess. Defendant no.1 has proved that he was in service and was having his separate earnings from the year 1958 to 01.03.1962 first as a teacher in one M.E.School and then joining as a clerk under the State Government. The documentary evidence to that effect have been exhibited. The witnesses have stated that the father of the parties acted as ‘karta’ of the family and as such to have also sold the properties. Viewing the year of purchase, inconsonance with the settled principles of law, undoubtedly the burden of proof rests on the plaintiff to establish that it is the property purchased in the name of defendant no.1 solely with the aid of the joint family fund which was in his hand at the relevant time of purchase. The second purchase has been made after lapse of eight years from the first purchase. This burden of proof is found to have never been discharged. The lower appellate court in fact without assigning any reason has abruptly reversed the trial court’s finding, rendering it to the contrary although the finding of the trial court against the claim of partibility was based on detail discussion of evidence and with reasons for their acceptance in one way or the other. The lower appellate court in fact without assigning any reason has abruptly reversed the trial court’s finding, rendering it to the contrary although the finding of the trial court against the claim of partibility was based on detail discussion of evidence and with reasons for their acceptance in one way or the other. Thus, I hold the lower appellate court’s finding to be not in conformity with the settled principles of law and as such the outcome, as suffering from the vice of perversity and as such liable to be set aside. All these aforesaid, accordingly provide the answers to the substantial questions of law in favour of the appellant . 16. In the wake of aforesaid, the appeal stands allowed. The judgment and preliminary decree passed by the lower appellate court are set aside. The order of dismissal of the suit passed by the trial court is accordingly restored. In the peculiar facts and circumstances, however parties are directed to bear their respective cost.