SURAJBHAN KAILASH CHAND Vs. HARI SHANKAR VASHSIST

JUDGEMENT

(1.) This Revision petition, which is directed against the way in which (From order of R. L. Gupta. Sub-J., 1st Class. Delhi. D/- 16-1-1971.) an issue was framed throwing the burden upon the petitioners/defendants, raises certain interesting questions involving the aspects which trial courts have to bear in mind when framing issues. The distinction between the legal burden and the evidentiary burden is important; while the former does not shift the latter "a continuous process of shifting of onus of proof" does The expressions "burden of proof" and onus of proof" (how the legal burden and evidentiary burden are more accurately described) are employed to separately denote them, so that much of the confusion that often results by using them interchangeable can be avoided.

(2.) The facts out of which this petition arises may be briefly noticed. The first respondent/plaintiff filed the present suit, out of which this revision arises, for a mandatory injunction against the petitioners/defendants requiring them to quit the Chabutra (a raised platform) situate in front of property No. 17/139, situate at Gali No. 5, Than Singh Nagar. Anand Parbat. Delhi on the allegation that the petitioners along with Deep Chand (2nd defendant/respondent No. 2) and licensee of the remaining vacant space (of certain dimensions) were lessees of the shop and the chabutra. According to the petitioners they were tenants under the plaintiff (first respondent), of one shop bearing the above said number along a certain portion of suit land but were tenants of the other portions of vacant land (along with some more) under Ram Jas College Society. Delhi (not a party to the suit). An issue regarding nonjoinder of the said Society was held in favour of the plaintiff and against the defendants by B. C. Misra. J.. in CR 342 of 1970 by order dated 28-8-1970.*

(3.) Among other issues the trial court framed the following issues 1 to 2 on 2-4-1968: