SHER SINGH Vs. HARI CHAND AND ORS.

JUDGEMENT

(1.) A suit for declaration that the plaintiffs are owners in equal shares of the suit land and further that sale deed dated 3.9.2008 is fraudulent and forged document and thus, the said sale deed as also mutation dated 22.9.2008 are liable to be ignored, is pending adjudication before the lower court since 1.12.2008. During the pendency of the suit, an application was moved by the plaintiffs for framing an additional issue.

(2.) Notwithstanding the contest made by the defendants, such application of the plaintiffs was allowed on 6.11.2012 whereby additional issue regarding sale deed dated 3.9.2008 was framed but onus to prove the issue was put on the plaintiffs. A fresh application was moved under Order XIV Rule 5 CPC for changing the onus of proof. It was claimed that the additional issue regarding sale deed dated 3.9.2008 is to be proved by the defendants and not by the plaintiffs. Similarly, it is claimed that the onus of proving the Will propounded by the defendants has wrongly been put on the plaintiffs, whereas it should have been on the defendants and thus, order dated 24.9.2012 is also wrong to that extent.

(3.) The defendants contested the application and claimed that the burden to prove that the sale deed was for legal necessity and for valid consideration is not on the defendants but since the sale deed has been challenged by the plaintiffs, the burden of proof that it was without necessity and without valid consideration, was upon the plaintiffs.