1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2053 OF 2008. Ravba @ Ravdya S/o Dagdu Minde ... Petitioner. Versus Balu S/o Hari Minde (dead) through L.R. Vithal S/o Hari Minde and others ... Respondents. ... Mr.S.K.Shinde, advocate for the petitioner. Mr.A.K.Gugale, advocate holding for Mr.D.R.Korde, advocate for the Respondent No.2. Respondent Nos.3 to 6 served. ... CORAM : V.R.KINGAONKAR,J. Date : 08.07.2009. PER COURT 1. By this petition, the petitioner impugns a part of order rendered on applications (Exh.65 and Exh.67) in Special Civil Suit No.43/2004. 2. By filing application (Exh.65) original 2 defendant Nos.2 and 3 urged for recasting of the issues and addition of issue No.7-A. The additional issue was allowed to be framed as follows : "Whether the plaintiff and defendant Nos. 5 and 6 prove that the properties described in W.S. para No.18(1)(a) and 18(1)(b) are their self acquired properties." The learned Civil Judge, however, rejected the application filed by the petitioner to recast the issue to the following effect : "Whether the defendant Nos.2 and 3 prove that the properties described in para 18(1)(a) and 18(1)(b) are joint family properties of the plaintiff and defendants.?" 3. Heard learned counsel for the parties. 4. The petitioner/plaintiff filed suit for partition and separate possession. The contesting defendant Nos.2 and 3 resisted the suit by filing 3 their written statement and also filed counter claim. They included two agricultural lands bearing Gat No.218/2 and Gat No.626 and asserted that both these lands also ought to have been put in common hotch potch in view of Article 333 of the Hindu Law (By Mulla). 5. It is pertinent to note that burden of proof has to be set out while framing issues inasmuch as it would be necessary to direct parties to go to the trial in appropriate manner. It also is required in order to ascertain as to who has right to commence the trial and lead evidence. The Litmus test that is to be followed while framing the issues is : "who would fail if the proof is not furnished". In the present case, the contesting defendant Nos.2 and 3 came out with a case in para 18(1)(a) of their pleadings that the two agricultural lands mentioned by them are also the joint family properties and if the partition is to be effected then both the properties also need to be included in the decree. In other words, it is the contention of the defendant Nos.2 and 3 that likewise other 4 properties the said two lands bearing Gat No.218/2 and Gat No.626 are also required to be divided by metes and bounds during the course of the partition. If this fact is taken into account, assuming that neither party leads evidence as regards the availability of these two lands for partition or in respect of ownership, as the case may be, the answer to this query would surely be that the contesting defendants would fail because they have come out with a case that the said properties are available for partition. It is in the light of this proposition that the issue required to be framed was with specifications about burden of proof. Under these circumstances, the learned Judge of the trial Court committed patent error while rejecting the application (Exh. 67) filed by the petitioner. It is well settled that there is no presumption that a property is joint family property unless it is established that there was sufficient joint nucleus available at the material time to acquire such property and there is probability of such acquisition with the aid of joint family funds. The contesting defendant Nos.2 and 3 simply asserted that the 5 said two properties are joint family properties but prima facie material is not stated in the pleadings to infer that they could be exonerated from liability to prove the acquisition of the said properties by utilising the nucleus of joint family. Considering these aspects, the impugned order to the extent of dismissal of the application (Exh.67) filed by the petitioner is patently erroneous. 5. In the result, the petition is allowed. The impugned order only to the extent of rejection of application (Exh.67) be deemed as allowed. The learned Civil Judge to frame appropriate issue as proposed in application (Exh.67) and to proceed with the matter. Rule made absolute accordingly. (V.R.KINGAONKAR,J.) asp/office/wp205308