JUDGMENT : 1. This Regular First Appeal is filed by the legal representatives of plaintiffs No. 2 and 3 being aggrieved of the judgment and decree dated 15th November 2006 in OS No.3578 of 1990 on the file of the I Additional city Civil and Sessions Judge, Bangalore City (CCH-2). The court below by the impugned judgment and decree dismissed the suit for partition, possession and also for the relief of mesne profits. 2. The parties would be referred to their rank in the suit for convenience. Brief facts of the case are that K. Ramaswamy, is the father of plaintiffs No.1 to 4 and defendant No.1. K. Ramaswamy purchased the plaint schedule property under a registered Sale deed dated 24th September 1953. Said K. Ramaswamy died on 04th July 1969 leaving behind him the plaintiffs and defendant No.1 as his legal heirs. Thereafter, plaintiffs No.1 to 4 and defendant No.1 succeeded to the plaint schedule property. Plaintiffs and defendant No.1 joined together and got executed an oral settlement deed with regard to the partition by metes and bounds. But, later on defendant No.1 did not come forward to act upon it. The defendant No.1 is alone collecting rent from the tenants. Defendants No.2 to 4 are the tenants. Plaintiffs requested the defendant No.1 to effect partition. The defendant No.1 having not come forward to effect partition in the plaint schedule property, the plaintiffs got issued a legal notice to the defendant No.1 for which the defendant No.1 gave an evasive reply. Hence the suit came to be filed. 3. Defendants No.1 to 4 entered appearance. Defendant No.1 filed his written statement. Defendants No.2 and 3 filed a joint written statement. 4. Defendant No.1 has denied the existence of joint family consisting of him and the plaintiffs and also denied that the plaint schedule property is a joint family property. Defendant No.1 denied the right, share or interest of the plaintiffs over the plaint schedule property. It is his contention that in the month of May 1986 oral partition has taken place between him and plaintiffs and in the said partition the plaint schedule property has fallen to his share. Hence, the defendant No.1 has got absolute and exclusive right over the plaint schedule property. It is his contention that in the month of May 1986 oral partition has taken place between him and plaintiffs and in the said partition the plaint schedule property has fallen to his share. Hence, the defendant No.1 has got absolute and exclusive right over the plaint schedule property. He further contended that his father K. Ramaswamy sold one of his properties and performed the marriage of plaintiff No.4 out of the proceeds and in the remaining consideration amount he purchased two sites in the name of plaintiffs No.2 and 3. In the said oral partition, said two sites were given to the share of plaintiffs No.2 and 3. Plaintiff No.1 took all the movables and gold ornaments. One site was also purchased in the name of plaintiff No.1 out of the joint family funds during the lifetime of said K. Ramaswamy. Hence, the properties which are described in the written statement schedule, are also the joint family properties. If the plaint schedule property is to be considered as a joint family property, then item No.1 to 3 of the written statement schedule property are also to be included as suit schedule property and legitimate share of the defendant No.1 be awarded in his favour. 5. Defendants No.2 and 3 have contended in their written statement that they are the tenants of portion of the plaint schedule property. Since there is conflicting demands in respect of the rents, the defendants No.2 and 3 sought permission to deposit the rents in the court. 6. On the basis of the above pleadings court below has framed the necessary issues regarding existence of the joint hindu family and joint possession of the suit property, as to suit schedule property being self acquired property of father of the parties and now it is absolute property of defendant No.1, proof of oral partition; and entitlement of the plaintiffs for the suit relief. 7. On the basis of the additional pleadings two additional issues were framed about the written statement schedule properties being joint family properties and if so, entitlement of first defendant for share in them; and as to whether court fee paid by the first defendant is sufficient. 8. On behalf of the plaintiffs, Plaintiff No.2 has been examined as PW1 and documents Exhibits P1 to P11 are marked. Defendant No.1 has been examined as Dw1 and got marked Exhibit D1 to D17. 8. On behalf of the plaintiffs, Plaintiff No.2 has been examined as PW1 and documents Exhibits P1 to P11 are marked. Defendant No.1 has been examined as Dw1 and got marked Exhibit D1 to D17. Defendants No.2 to 4 did not lead evidence. The court below, after appreciating the materials on record, was placed to dismiss the suit holding that the plaintiffs were not in joint possession of the suit property as members of undivided Joint Hindu family, suit schedule property is the self acquired property of his father and now it is absolute property of first defendant, the suit schedule property is allotted to first defendant in oral partition in May, 1986 and the written statement schedule properties were the joint family properties. 9. The learned counsel appearing for the appellants submits that the court below has committed serious error in dismissing the suit for partition in respect of only property left by deceased K. Ramaswamy treating as though the same was allowed under a oral partition deed in 1986 in favour of the first respondent. It was wholly misled in reaching the conclusion that Bangalore Development Authority property, ITI Employees HDC Society allotted property to sons belong to the family and that they were also amenable for partition and that such allotted properties should go to the share of the allotees. The court has not noticed that joint family and self-acquired properties have different connotation and the acquisition of property by an employee from employer was distinct and separate from joint family properties in the absence of a plea, issue and proof as to blending to be volunteered by the acquirer. The conduct of the parties has been thoroughly misconstrued by the court below and appreciation of evidence is perverse. Oral release of rights of immovable property in the absence of documents registered is per se impermissible. 10. On the other hand, learned counsel for the respondent No.1 supported the impugned judgment and decree and in case if the suit schedule property is to be held as a joint family property, he is entitled for a share in the written statement schedule property, which may be allotted. 11. 10. On the other hand, learned counsel for the respondent No.1 supported the impugned judgment and decree and in case if the suit schedule property is to be held as a joint family property, he is entitled for a share in the written statement schedule property, which may be allotted. 11. Having heard the learned counsel for the parties, the point that arises for consideration in this appeal is; whether the court below has committed any illegality or irregularity in passing the impugned judgment and decree calling for interference by this Court? My finding is in the negative for the following reasons. 12. Exhibit P1 is the memorandum of understanding which reveals that the parties have agreed to pay some amount towards their share. But, there is no material on record to show that the same has been acted upon. Exhibit P1 is dated 10th January 1981 which is much prior to the date of partition set up by the defendant No.1 which is in May 1986. In the absence of materials, Exhibit P1 will not come to the aid of plaintiffs in proving their share in the plaint schedule property. Now, it is to be seen as to whether an oral partition as claimed by defendant No.1 has taken place in the month of May 1986. 13. PW1 has stated in his cross-examination that the plaintiffs have not tried to get their names entered in the khata of the plaint schedule property after the death of their father K. Ramaswamy. The plaintiffs have not paid any tax on the plaint schedule property. Plaintiffs have not invested any money for maintenance of the plaint schedule property. PW1 has admitted that after the death of their father the plaint schedule property has been transferred in the name of defendant No.1 and the defendant No.1 has paid the taxes since 1986. By seeing this evidence on record, an inference can be drawn that an oral partition has taken place between the parties. If the partition had not taken place in the year 1986, as to why the plaintiffs kept quiet for all these years in respect of getting their names entered in the khata and as to why the plaintiffs have not made any efforts to pay the tax in respect of the property, no explanation is forthcoming. Either it is explained in the pleadings or in the evidence of PW2. Either it is explained in the pleadings or in the evidence of PW2. No doubt, DW2 has stated that partition has not taken place. But on the face of conduct of the plaintiffs and the admission given by PW2 in respect of payment of tax, maintenance of the schedule property by the defendant No.1 alone right from 1986, an inference can be drawn that partition has taken place in respect of the plaint schedule property. The khata got entered in the year 2003 in the name of the plaintiffs, is of no help to the plaintiffs as it is during pendency of the suit. 14. The fact of mortgaging the plaint schedule property has been admitted by PW1 in the cross examination. PW1 has also admitted that so far the plaint schedule property has not got redeemed from the mortgagee. It is also admitted by PW1 that so far the said debt has not been discharged by them. From this, an inference can also be drawn that because of the reason that plaint schedule property has fallen to the share of defendant No.1 none of the plaintiffs have tried to discharge the debt of the plaint schedule property. Hence, as on the date of filing of the suit, plaint schedule property was not the joint family property. 15. It is the contention of the plaintiffs that in purchasing the written statement schedule properties, none of the plaintiffs have utilized the joint family funds. Therefore, items No.1 to 3 of the written statement schedule properties cannot be considered as joint family properties. 16. It cannot be disputed that the site measuring 30 x 50 feet situate in Hosahalli, Vijayanagar, Bangalore has been purchased during the lifetime of K. Ramaswamy. Item No.2 of the written statement schedule property, property No.750, situate at 5th Main Road, Vijayanagar Bangalore had also been purchased during the lifetime of K. Ramaswamy. Property No.574 situated at 6th Block, Rajajinagar, Bangalore was purchased in the name of plaintiff No.3. Plaintiff No.1 has sold the property measuring 30 x 50 feet situate at Hosahalli and purchased item No.1 of the written statement schedule properties, i.e. property No.83 situate at ITI Layout, Vidyapeetha, Hanumanthanagar, Bangalore out of the said proceeds. Likewise plaintiff No.3 has sold his property and purchased item No.3 of the written statement schedule property in the name of his wife Smt. Prema. Likewise plaintiff No.3 has sold his property and purchased item No.3 of the written statement schedule property in the name of his wife Smt. Prema. As these properties have been purchased out of the sale proceeds of the joint family properties, these properties are the joint family properties of the parties is the contention of the defendant No.1. 17. The initial burden of proving the fact that written statement schedule properties are the joint family properties is on the defendant No.1. It is an admitted fact that property No.83 situated at Hosahalli, property No.750 and property No.574 were purchased during the lifetime of K. Ramaswamy. Defendant No.1 though claimed that the said properties have been purchased out of the joint family funds, none of the plaintiffs have come forward to give their evidence to say that the said properties have been purchased out of their own earnings. After amending the plaint and filing the rejoinder additional issues were framed. Thereafter, PW1 was recalled and exhibits P5 to P11 were marked. PW1 has not given his evidence that the said properties are the self-acquired properties of plaintiffs No.1 to 3 out of their own income. On the contrary, the evidence of defendant No.1 shows that K. Ramaswamy sold the property at Gavipuram extension and out of the sale proceeds he performed the marriage of plaintiff No.4 and also purchased two sites in the name of plaintiffs No.1 and 2. This fact has not been denied by the plaintiffs when they have cross-examined DW1. Plaintiffs No.1 to 3 have not produced copy of the sale deeds in their names in respect of the said properties. PW1 has expressed his ignorance of the property purchased by plaintiffs No.2 and 3. No doubt, a person living in a joint family can purchase a property out of his own income. But, he has to prove that the same is his self-acquired property. On the basis of evidence of PW1 and defendant No.1 an inference can be drawn that the said properties have been purchased out of the joint family funds. The burden of proving that the said properties have been purchased out of their own income was on the plaintiffs No.1 to 3. But they have not at all tendered their evidence in proof that properties standing in their names are their self-acquired properties. The burden of proving that the said properties have been purchased out of their own income was on the plaintiffs No.1 to 3. But they have not at all tendered their evidence in proof that properties standing in their names are their self-acquired properties. Therefore, it is clear that the written statement schedule properties were the joint family properties. 18. Defendant No.1 had made it clear in his evidence that in the partition taken place in May 1986 the property which were standing in the names of Plaintiffs No.1 to 3 have been allotted to their respective share. This fact appears to be probable. Plaintiff No.1 has sold the property allotted to him and purchased item No.1 of the written statement schedule property. So also, plaintiff No.3 sold the property allotted to his share and purchased item No.3 of the written statement schedule properties. None of the plaintiffs or the defendant No.1 have objected for selling of the said properties. This conduct of the parties speaks that the partition has taken place in the year 1986. 19. Prior to 1986 the plaint schedule property was the joint family property. Exhibit P2 series letter speak about the correspondence by the plaintiffs with the defendant No.1. Hence, no importance could be attached to exhibit P2 series letters. Exhibit P3 is the legal notice. Exhibit P4 is the reply notice. The defendant No.1 had not admitted the share of the plaintiffs over the plaint schedule property. Exhibit P3 or P4 are therefore not of any help to the plaintiffs. 20. The defendant No.1 produced counterfoil of the cheque of his father issued in favour of CITB; Exhibit P5 is the site allotment letter pertaining to site No.750 issued by CITB in favour of plaintiff No.2. Plaintiff No.2 has deposed in his cross examination that he was allotted site from CITB in the year 1964. When the counterfoils were confronted to plaintiff No.2, he has admitted in his evidence that the payments made by his father as per D2 (b) to D2(f) was towards CITB. However, he has stated that he does not know in respect of which site the payment was made. He has not given any explanation as to there being any other property allotted by CITB in his favour. Thus plaintiff No.2 has admitted with regard to issuance of cheque by his father. However, he has stated that he does not know in respect of which site the payment was made. He has not given any explanation as to there being any other property allotted by CITB in his favour. Thus plaintiff No.2 has admitted with regard to issuance of cheque by his father. Therefore, it is clear that item No.2 of written statement schedule property was not purchased out of the self earnings of plaintiff No.2. On the contrary, it can be safely said that the same has been purchased out of the joint family funds. The plaintiff No.2 has not given any explanation that the amount deposited by him through the cheques were not pertaining to site No.750 and it was deposited towards some other site. Therefore, it has to be considered that cheques that have been issued were only for the deposit of money in respect of site No.750. Exhibits P6 to P9 do not establish that site No.750 was the self-acquired property of plaintiff No.2. On the contrary, it has been purchased out of the joint family funds. 21. Plaintiff No.3 did not enter the witness box to prove that site No.574 has been purchased by him out of his own earnings. Exhibit D3 sale agreement is dated 03rd May 1965, which is much prior to the death of father of the parties. In view of paucity of materials to prove that site No.574 has been purchased by plaintiff No.3 out of his own earnings, it is to be considered that it is also purchased out of joint family funds. 22. Exhibit D5, D15, D16 ad D17 are the certified copy of judgments in HRC proceedings initiated by defendant No.1 as a landlord of the present plaint schedule property. These documents clearly prove right of defendant No.1 over the plaint schedule property and his right of ownership exercised over the plaint schedule property. 23. It is the definite case of defendant No.1 that in the partition taken place in the year 1986 the properties have been allotted towards share of the plaintiffs. Even if it is considered that item No.1 and 3 of the written statement schedule property have been purchased out of the sale consideration of the properties belonging to plaintiffs No.1 and 3, then also item No.1 and 3 of the written statement schedule properties are not liable for partition. Even if it is considered that item No.1 and 3 of the written statement schedule property have been purchased out of the sale consideration of the properties belonging to plaintiffs No.1 and 3, then also item No.1 and 3 of the written statement schedule properties are not liable for partition. So also, item No.2 of written statement schedule property. Because after oral partition, they are purchased by selling the properties allotted to the share of the plaintiffs. 24. The plaintiffs have failed to prove that as on the date of the suit, the plaint schedule property is the joint family property and no partition has taken place. Thus, the plaintiffs are not entitled to any relief in the suit as prayed for. 25. The court below has considered the materials on record in proper perspective and has reached to right conclusions. No error or infirmity can be found in the impugned judgment and decree so as to call for interference. The point raised for consideration is answered accordingly. In the result and for the reasons stated above, this appeal is liable to be dismissed, accordingly dismissed. Parties shall bear their own costs.