1 wp 3638.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3638 OF 2011 Kusumbai Arjun Pawar & anr. .. Petitioners Versus Ambadas Sitaram Ajabe .. Respondent Shri V. M. Chate, Advocate for Petitioners. CORAM : S. V. GANGAPURWALA, J. DATE : 20TH JUNE, 2011. PER COURT : . The plaintiff had filed a suit for partition and separate possession on the ground that the suit properties are Joint Hindu Family Properties. The defendant filed his written statement and contended that some of the property is his self acquired property. 2. The Trial Court had framed issues wherein issue No. 1 was to the effect that whether plaintiffs proves that the suit properties are Joint Family Properties. 2 wp 3638.11 3. The plaintiffs thereafter filed an application for framing an additional issue in the nature that whether defendant proves that the property bearing Sy. No. 288/A/1 is self acquired property. The said application came to be rejected by the Trial Court on the ground that the issue No. 1 takes care of the same. Aggrieved thereby the present petition has been filed. 4. Shri Chate, the learned counsel for the petitioners submits that in view of Section 101 of the Indian Evidence Act the burden is upon the person who asserts certain fact and unless an issue is framed, the burden is not cast upon him to discharge the same. As such, considering the pleadings of the defendant, it is necessary to frame the proposed issue. 5. The fact that the property stands in the name of defendant is not disputed. It is a trite law that there is presumption of joint family, but no presumption that the property held by individual member of the joint family is a joint family property. First, the plaintiffs will have to discharge their burden about the property being a joint family property, then only the burden would shift upon the defendant in view of the concept of proved, disproved, not proved. 3 wp 3638.11 6. The Court has observed that issue No. 1 deals with this aspect. In the light of above, no error is committed by the Trial Judge in rejecting the said application. The writ petition being devoid of merits is dismissed, however, with no costs. [ S. V. GANGAPURWALA, J. ] bsb/June 11