KAUSHAL KISHORE Vs. DHARAM KISHORE

JUDGEMENT

(1.) THIS is a defendants' petition for revision of the order of the Court of Shri B. R. Gupta, Subordinate Judge 1st Class, Hissar, dated Nov. 18, 1974, reframing issue No. 4 so as to shift the burden of the issue from the plaintiff to the defendants and splitting up original issue No. 5 into issues No. 5--A and 5--B in order to retain the burden of issue No. 5--B in respect of some of the properties on the plaintiff (Properties mentioned in issue No. 5--B) and to shift the burden in respect of the other properties to the defendants which are covered by issue No. 5--A.

(2.) THE suit for partition was filed by Dharam Kishore against his real brothers Nawal Kishore, Kaushal, Kishore, Hari Kishore and Prem Kishore. All the above said five brothers are the sons of Tansukh Rai. They also have four sisters (four daughters of Tansukh Rai) who have been impleaded as pro forma defendants to the suit but are said to be not claiming any interest to the property of their deceased father. The defendants having denied the existence of a Joint Hindu family and having also denied that the properties sought to be partitioned belonged to a Joint Hindu family, issues Nos. 4 and 5 originally framed by the trial Court on September 3, 1974, were in the following words:-"

(3.) ALL that the learned Subordinate Judge has stated in support of his order under revision is this:-" There is presumption of jointness among the members of a Hindu family and unless partition is alleged, that presumption subsists in favour of such a family. From the written statement of the defendants it is not borne out that the property was ever joint or that any partition ever took place among the parties. After giving a careful consideration to the points in issue, I feel that issues Nos. 4, 5, 8, 9 and 10 require modifications and 1 accordingly proceed to do the same. " After noticing the fact that the defendants have not admitted in their written statement that the property in suit was ever joint or any partition took place among the parties, no reference at all has been made either to the statement of the counsel for the defendants made before the trial Court on Sept. 13, 1974, or to the document relating to the alleged partial partition of some of the properties on account of which the burden of the two issues in question was shifted by the trial Court to the defendants. Prima facie the order shifting the burden of the two basic issues not being supported by any reason, the revision petition was admitted by Sharma, J. on Jan. 6, 1975, and further proceedings in the trial Court were stayed. This revision has to be decide under the unamended Civil P. C. (as it was admitted prior to the amendment of the Code) as laid down in clause (c) of sub--section (2) of S. 97 of the Civil P. C. (Amendment Act) 1976. I have mentioned this fact as I am extremely doubtful if an order under Rule 5 of Order 14 of the Civil P. C. recasting an issue with or without changing the burden thereof, can at all fall within any of the two clauses of the proviso to sub--section (1) of S. 115 of the amended Code, except indeed in a very rare case.