Civil Rev. 5612 of 2008 1
IN THE PUNJAB AND HARYANA HIGH COURT, CHANDIGARH
Civil Rev. 5612 of 2008
Date of decision: 31.8.2009
Gurbhej Singh
Petitioner
vs
Prithpal Singh and others
Respondent
Present Mr. Padam Jain, Advocate
Mr. Pyush Bansal, Advocate for
Mr. Amit Aggarwal, Advocate.
M.M.S.BEDI,J.
An application filed by the plaintiff- petitioner for framing of
additional issues on the basis of the amended written statement field by the
defendants has been dismissed by the trial court vide order dated
11.8.2008.
After going through the pleadings, it appears that the plaintiff
had filed a suit for possession of property measuring 1 kanal out of 1 kanal
7 marlas, situated in village Dera saidan, Tehsil Sultanpur Lodhi, District
Kapurthala comprised in khasra No. 9//16/1/2/ (1-7) as per jamabandi for
the year 1999-2000 after demolition of the unauthorized structure raised by
the defendant-respondents. The defendant- respondents by way of
amended written statement had taken up a new plea that khasra No.9//16/1
(3-3) was not in existence and the original owner Mool Chand did not have
the ownership rights in the property sold by him nor his legal heirs were
Civil Rev. 5612 of 2008 2
owners or competent to alienate the property.
The trial court has dismissed the application observing that the
issues are already framed and the proposed issues are covered in the
substantial issues regarding possession, as such no new issues are
required to be framed.
After considering the facts and circumstances of the case, I am
of the opinion that the defendant- respondents have raised new pleas,
even objecting to the title of vendor of plaintiff Mool Chand, besides raising
a plea that they are in adverse possession. They have also claimed the
defence of easement in the amended written statement. As per Section
102 of the Indian Evidence Act, the burden of proof in a suit or
proceedings lies on that person, who would fail if no evidence at all were
given on either side. As per the pleadings of the plaintiff, he is not required
to lead any evidence on the pleas, which have been raised by the
defendants in the written statement. It is defendant-respondents, who have
to substantiate the pleas of adverse possession and easement and non
existence of right in Mool Chand to sell the property to the plaintiff.
Learned counsel for the respondents has placed on record a
copy of the judgment passed by Sub Judge Ist Class, Kapurthala dated
16.1.1973 in a suit for recovery in favour of Mool Chand, wherein a
reference has been made that he had sold the property in dispute to
Ujjagar Singh. In case the defendant-respondents have to establish that
Mool Chand did not have any right in the property, purchased by the
plaintiff, they will have to produce evidence as onus lies upon them u/s 102
of the Indian Evidence Act.
In view of the above, the revision petition is allowed, the
Civil Rev. 5612 of 2008 3
impugned order dated 11.8.2008 is hereby set aside and the trial court is
directed to reconsider the matter minutely in the light of the provisions of
Sections 101 and 102 of the Indian Evidence Act and frame the additional
issues, if necessary, in accordance with the pleadings of the parties.
The parties are directed to appear before the trial court on the
date fixed for further proceedings. Disposed of.
August 31 ,2009 ( M.M.S.BEDI ) TSM JUDGE