TARA CHAND Vs. ISHWAR CHAND

JUDGEMENT

(1.) THIS petition has been directed against the order dated 28.3.1997 passed by the Additional Civil Judge (SD) Kaithal. By this order, the learned trial court has rejected the application of the plaintiff for framing of an additional issue to the effect "whether the suit land was partitioned orally by the co-owners on 1.10.1986 and memo to this effect was reduced to writing on 22.10.1986 ?" It is not disputed that this issue arises out of the pleadings of the parties made in paras 4 and 5 of the plaint and the written statement. The only ground given by the learned trial court in not framing this issue is that already one issue has been framed to the effect that "Whether the plaintiff is owner of the disputed property ?" The learned trial court has observed that under the said issue the plaintiff was at liberty to prove the alleged oral partition and the alleged memorandum dated 22.10.1986.

(2.) MR . Goel, the learned counsel appearing on behalf of the petitioner, however, submits that the ownership of the plaintiff being co-sharers in the suit property, is not disputed by any of the defendants. He, therefore, submits that since the additional issue arise out of the pleadings, the learned trial court ought to have framed this issue.