JUDGMENT : (K. MANMADHA RAO, J.) The Defendant No.1 is before this Court, assailing the legality and correctness of the Judgment and Decree dated 11.11.2024 passed in O.S.No.2188/2015 on the file of the Court of LXXV Addl. City Civil and Sessions Judge, (CCH.76) at Bengaluru (hereinafter referred to as 'the trial Court' for short), whereby the suit filed by respondent No.1/plaintiff for declaration of 1/7 th share in the suit schedule properties (A to E) and for consequential reliefs, was partly decreed. 2. For the sake of convenience, the parties herein are referred to as per their ranking before the trial Court. The Brief facts of the case are as follows : 3. The plaintiff/B.R.Lokanath who claims to be the son of one Late Sri.C. Ramaiah had sought partition and separate possession of one half (1/7 th ) share in ‘A, B, C, D’ and ‘E’ schedule properties. It is admitted fact that the plaintiff and defendants No.1, 3 and 6 are the sons and defendants No.2, 4 and 5 are the daughters of Late Sri.C. Ramaiah and Smt. B. Byramma and that the suit schedule property is the ancestral joint family property of the plaintiff and defendants No.1 to 6. 4. The plaintiff/B.R. Lokanath, instituted O.S.No.2188/2015 before the trial court seeking partition and separate possession of 1/7 th share in ‘A’ to ‘E’ Schedule properties. The suit was contested by defendants No.1, 4, and 6 (including the appellants herein) through a joint written statement, while defendant No.3 filed a separate statement. The defendants contended that a prior suit, O.S.No.3714/1995, was instituted by defendants No.1, 5, 6, and their mother Smt. Byramma for partition of 1/8 th share each in the C-Schedule property, which was the absolute property of the deceased father of the plaintiff and defendants. The defendants No.1,5,6 and their mother were placed exparte. The B.R.Lokanath was a party to the earlier suit which culminated in a decree on 31.03.1998, as evidenced by Exhibits P9 and P10. 5. Despite the earlier decree, plaintiff filed O.S.No.2188/2015, 17 years later, again including the ‘C’ Schedule property and further seeking partition of the alleged absolute properties of defendants No.1, 3, and 6. It was contended that the ‘E’ Schedule properties were non-existent and that the ‘D’ Schedule properties were the absolute properties of the mother which was gifted to defendant No.6. Despite the earlier decree, plaintiff filed O.S.No.2188/2015, 17 years later, again including the ‘C’ Schedule property and further seeking partition of the alleged absolute properties of defendants No.1, 3, and 6. It was contended that the ‘E’ Schedule properties were non-existent and that the ‘D’ Schedule properties were the absolute properties of the mother which was gifted to defendant No.6. The defendants contended that the present suit was barred by limitation and res judicata, and was therefore not maintainable. However, the trial court erroneously entertained and decreed the suit in favour of plaintiff contrary to the pleadings and evidence on record. Aggrieved by the said judgment and decree, defendant No.1 has preferred the present appeal. 6. The trial Court based on the pleadings, framed the following issues for its consideration: " 1. Whether the plaintiff proves that, plaint 'A' to 'E' schedule properties are ancestral joint family properties of him and D.1 to 6? 2. Whether the plaintiff proves that the judgment and decree dated: 31.03.1998 passed in O.S.No.3714/1995, proceedings in FDP No.15/2000 and 18.11.2004 are all illegal, void and not binding on him? 3. Whether the 1 st defendant proves that, plaint schedule property is his self acquired 'A' schedule property and that D.3 proves that, plaint 'B' schedule property is his self acquired property? 4. Whether the plaintiff is entitled to 1/7th share in the plaint 'A' schedule property? 5. What order or decree? RECASTED ISSUE NO.4 4. Whether the plaintiff is entitled to 1/7th share in the plaint 'A' to 'E' schedule properties? 7. The trial Court further, based on the pleadings, framed the following additional issues for its consideration: 1. Whether the defendant No.6 proves that the 'D' schedule property is the Self acquired property of his mother Smt. Byramma and she has gifted it to him during her life time? 2. Whether the suit is barred by Resjudicata in so far as the 'C' schedule property in view. of the judgment and decree of partition. passed in O.S.No.3714/1995 by the City Civil Court, Bengaluru?" 8. In order to substantiate their claim, the plaintiff through his power of attorney holder examined as PW-1 and got marked the documents as Ex.P1 to Ex. P17. On the other hand, in order to substantiate their defence, the defendants examined themselves as DW-1 to DW-3 and got marked the documents as Ex.D1 to Ex.D37. 9. In order to substantiate their claim, the plaintiff through his power of attorney holder examined as PW-1 and got marked the documents as Ex.P1 to Ex. P17. On the other hand, in order to substantiate their defence, the defendants examined themselves as DW-1 to DW-3 and got marked the documents as Ex.D1 to Ex.D37. 9. The trial Court based on the pleadings, oral and documentary evidence, held as under:- The suit of the plaintiff is partly decreed. The plaintiff is entitled for 1/7th share in suit schedule properties. Parties are directed to bear their own costs. Office to draw preliminary decree and thereafter, register a petition under Order XX Rule 18 C.P.C for drawing final decree, in terms of direction of Hon'ble Apex Court in the Judgment of Kattukandi Edathil Krishnan and another -Vs- Kattukandi Edathil Valsan and others (2022 SCC Online SC 737). There shall be an enquiry with regard to mesne profits under Order XX Rule 12 of C.P.C. in separate proceedings, if the plaintiff so desires. 10. The learned Senior Counsel appearing for the appellant would contend that the plaintiff sought various reliefs including setting aside of the decree dated 31.03.1998 in O.S.No.3714/1995 with respect to ‘C’ Schedule property, declaration of 1/7 th share, injunction against alienation of properties, declaration of the Gift Deed dated 18.11.2004 as void, and for mesne profits. The defendants, including appellants herein, contested the suit. The trial court, despite the absence of adequate pleadings and legal evidence, erroneously decreed the suit partly by holding that the plaintiff was entitled to 1/7 th share and ordered an enquiry into mesne profits and further submitted that the Trial Court has not properly appreciated and evaluated the evidence and documents filed by the appellant herein and erroneously allowed the suit and passed the impugned Judgment and Decree. 11. Learned counsel for the appellant submitted that the law is well settled that there is no presumption that every property held by a member of a Hindu family is joint family property. The Apex Court in the case of D.S. Lakshmaiah v. L. Balasubramanyam, reported in AIR 2003 SC 3800, held that the burden to prove a property as joint family property lies on the person asserting it. The Apex Court in the case of D.S. Lakshmaiah v. L. Balasubramanyam, reported in AIR 2003 SC 3800, held that the burden to prove a property as joint family property lies on the person asserting it. Further, in the case of Marabasappa v. Lingappa, reported in (2011) 9 SCC 451 , it was held that if the plaintiff fails to discharge the burden of proof, the Court cannot shift the burden of proof on the defendant to prove the property as self-acquired. In the present case, the plaintiff failed to adduce legal evidence to prove the joint family nature of ‘A’ Schedule property. Hence, the findings of the Trial Court holding ‘A’ Schedule property to be ancestral are perverse and liable to be set aside. 12. The learned counsel for the respondent/plaintiff would contend that the schedule properties are ancestral joint family properties was not supported by any cogent or admissible evidence. Particularly, ‘A’ Schedule property was purchased by defendant No.1, who was employed in Indian Telephone Industries from 1968 and retired in the year 2001 after 33 years of service under a registered sale deed dated 30.08.1977 (Ex.D3) and constructed the house using a loan from his employer and with the assistance of his wife. Documentary evidence including service certificate (Ex.D1), sale deed (Ex.D3), mortgage documents (Ex.D5), and loan discharge receipt (Ex.D6) clearly establish the self-acquired nature of the ‘A’ Schedule property. The plaintiff failed to prove the existence of any joint family nucleus or contribution of family income and further we are in agreement with the arguments advanced by the learned counsel for the appellant. 13. The Trial Court, being the Court of first instance, had the bounden duty to evaluate oral and documentary evidence in accordance with Order XX Rule 5 of CPC. The judgment rendered without proper reasoning or appreciation of evidence is not sustainable. The Trial Court has failed to consider the documents marked as Ex.P1 to P17 and evidence of P.W.1, Ex.D1 to Ex.D37 and the evidence of DWs 1 to 3. The conclusions drawn by the Trial Court are vitiated for non-consideration of material evidence and misapplication of legal principles. 14. The Trial Court has failed to consider the documents marked as Ex.P1 to P17 and evidence of P.W.1, Ex.D1 to Ex.D37 and the evidence of DWs 1 to 3. The conclusions drawn by the Trial Court are vitiated for non-consideration of material evidence and misapplication of legal principles. 14. We have considered the contentions advanced, without touching the merits of the case and in view of the rival contentions urged by the learned counsel for parties, the following points would arise for our consideration: a) The Trial Court has failed to evaluate and appreciate the evidence of P.W.1 by correlating the Ex.P1 to Ex.P17. b) The Trial Court failed to evaluate oral and documentary evidence of D.W.1 to D.W.3 and Ex.D1 to Ex.D37. c) The Trial Court failed to correlate the law in accordance with Order XX Rule 5 of CPC. 15. In view of the above, it is observed that the Trial Court failed to consider the case on record of the plaintiffs and defendants and also failed to consider the material evidence and mis-application of mind, delivered the impugned Judgment and Decree. In the result, we pass the following: JUDGMENT 16. Appeal is allowed. Impugned Judgment and Decree dated 11 th November 2024 passed in O.S.No.2188/2015 by the LXXV Addl. City Civil and Sessions Judge (CCH-76) at Bengaluru, is set aside and the matter is remitted back to the Trial Court for fresh consideration by considering the oral and documentary evidence and pass appropriate Judgment and Decree in accordance with law. The parties shall appear before the trial Court on 15.07.2025, without any further notice. The trial Court shall endeavour to consider and dispose of the O.S.No.2188/2015 afresh within a period of four months from the date of appearance of parties, i.e., 15.07.2025. Registry shall transmit the necessary records to the trial Court forthwith.