IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 105 of 2011 Date of decision: 18.7.2011 Amar Nath and another ….Petitioners. Versus Suma Ram and another ….Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioners: Mr. G.R.Palsra, Advocate. For the respondents: Mr. Neel Kamal Sharma, Advocate. . _____________________________________________________________________ Deepak Gupta, J. (Oral) 1. By means of this petition, the petitioners have challenged the order dated 11.1.2011 whereby the learned trial Court held that the defendants were not entitled to lead any evidence in rebuttal in their counter claim. 2. Briefly stated the facts of the case are that the plaintiffs filed a suit for permanent prohibitory injunction praying that they were owners in possession of the suit land and the defendants be restrained from interfering in the same. The defendants in the written statement prayed that they were in adverse possession of the suit land and filed a counter claim praying that they be 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 declared to have become owners as their adverse possession had ripened into ownership. On these pleadings, the following issues were framed by the learned trial Court:- “1. Whether the defendants are causing interference in the suit land, as alleged? OPP. 2. Whether the plaintiffs are entitled to the relief of injunction as prayed for? OPD. 3. Whether the plaintiffs have not come to the Court with clean hands? OPD. 4. Whether the plaintiffs are out of possession? OPD. 5. Whether the defendants are in adverse possession of the suit land? OPD. 6. Whether the suit of the plaintiffs is time barred? OPD. 7. Relief.” 3. Onus of issue No. 2 was wrongly placed on the defendants. Be that as it may, only issues 1 and 2 had to be proved by the plaintiffs. The plaintiff examined only himself in affirmative. Thereafter, the defendants had to lead evidence and obviously as far as issues No. 3 to 6 were concerned the onus to prove the same lay on the defendants. It was the defendants who had to lead evidence in affirmative to prove these issues. It appears that the defendants did not examine any other evidence but only examined one Patwari and tendered some documents. Thereafter, the plaintiffs led rebuttal evidence on issues No. 3 to 6. At this stage, the 3 defendants filed an application that they may be permitted to lead rebuttal evidence in their counter claim. As far as the counter claim is concerned, there is no issue onus of which has been placed on the original plaintiffs, who would be deemed to be defendants in the counter claim. Therefore, question of leading rebuttal evidence in the counter claim does not arise. At this stage Shri G.R.Palsra, learned counsel for the petitioners, submits that the mistake is of the counsel and the defendant may be permitted to examine himself in his evidence. Even in the application moved before the learned trial Court the only ground given is that the defendants want to lead rebuttal evidence on the factum of possession as the defendants have filed counter claim by way of adverse possession. This ground is not a valid ground, as already discussed above. No other ground has been pleaded. Therefore, there is no merit in the petition, which is accordingly rejected. No costs. 18th July, 2011 (Deepak Gupta) ™ Judge.