AMEENABI Vs. FAREED UNNISSA

JUDGEMENT

(1.) Heard Sri. Mohd. Usman Shaikh, learned counsel appearing for petitioners and Sri.M.V.Poonacha, learned counsel appearing for respondent No.1. Notice is not issued to respondent Nos.2 to 8 and same stands dispensed with.

(2.) Petitioners are defendant Nos.1, 4 and 7 in O.S.No.927/2015, which suit has been filed by first respondent herein for partition and separate possession of suit properties. On the basis of pleadings of parties trial court has framed issues. Petitioners herein namely, defendant Nos.1, 4 and 7 filed an application under Order 14 Rule 5 read with Section 151 CPC seeking recasting of issue Nos.5 and 6 contending interalia that 2nd plaintiff is asserting item Nos.2, 3 and 6(a) to 6(b) suit properties had been purchased by her father in the name of defendants and as such, burden is to be cast on plaintiff to prove this fact, but trial Court has cast the burden on defendants to prove issue Nos.5 and 6 and as such, issue Nos.5 and 6 are required to be recasted by shifting the burden on plaintiff.

(3.) Perusal of averments made in the written statement filed by defendants 1, 4 and 7 would disclose that at paragraphs 9, 10 and 32 they have specifically contended that item Nos.2 and 3 properties are their self acquired properties and as such, trial Court has rightly cast the burden on defendants 1, 4 and 7 to prove that item Nos.2, 3 and 6(a) to 6(b) are their self acquired properties. Issues so framed read as under: