SHANKAR DASS Vs. SHIVU

JUDGEMENT

(1.) Through the medium of this petition, filed under Section 104 of the Constitution of Jammu & Kashmir, the petitioner-plaintiff is seeking setting aside of order dated 03.08.2013 passed by the learned Sub-Judge Katra in the application filed by him in a suit, titled as Shankar Dass v. Shivu, bearing File No. 09-A/Civil misc., whereby the learned trial Court dismissed the said application seeking striking off issues No. 5 & 6 framed in the plaint. The facts essential for the disposal of this petition are that the plaintiff, petitioner herein, has filed a Civil Original Suit before the learned trial court seeking declaration to the effect that he is owner-in-possession of one-half of the entire land of his father, Chuha and uncle Kirpu falling in Khasra Nos. 97, 98 and 99, situate at Kundarorian, Tehsil and District Reasi. The basis of his claim is that his father Chuha and uncle Kirpu were two real brothers.

(2.) Learned trial court vide order dated 30.04.2013 framed a total of nine issues, issues 5 & 6 are to the following effect:

(3.) Petitioner-plaintiff being of the view that issues 5 & 6 have wrongly been framed, filed an application before the trial court for striking off the same. Petitioner-plaintiff pleaded that issues. No. 5 has negatively been framed, as the onus thereof ought to have been on respondent-defendant. He further pleaded that issue No. 6 is an unnecessary issue as the respondent-defendant has already denied that he was not adopted by Kirpu.