SCA/13378/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13378 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= DEEPAKKUMAR TRIBHOVANDAS PATEL & 2 - Petitioner(s) Versus ASHWINBHAI HARIBHAI PATEL - Respondent(s) ========================================================= Appearance : MR NM KAPADIA for Petitioner(s) : 1 - 3. MR RM CHHAYA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 23/12/2008 ORAL JUDGMENT 1. Rule. Shri R.M.Chhaya, learned advocate waives service of notice of Rule on behalf of respondent. With the consent of learned advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today. SCA/13378/2008 2/4 JUDGMENT 2. By way of this petition under Article 227 of the Constitution of India, petitioners-original plaintiffs have prayed for an appropriate writ, order or direction, quashing and setting aside the impugned order passed by the learned 7th Additional Senior Civil Judge, Surat dated 7.10.2008 passed below Exh.141 and Exh.159 in Regular Civil Suit No.1012 of 1983 by which the learned trial court has recast the issue by adding Issue No.3-A. 3. It appears from the impugned order that it was the contention on behalf of the plaintiffs that defendant is not an agriculturist and therefore he could not have purchased the suit land and on the other hand it was the contention on behalf of the defendant that defendant is an agriculturist and therefore he could have purchased the suit land. 3.1 Considering the averments in the written statement and the issues framed, petitioners-plaintiffs submitted the application to recast the issue and to add issue whether defendant proves that he is an agriculturist and accordingly he could have purchased the suit land. Instead of casting the burden upon the defendant to prove that he is an agriculturist the learned trial court by impugned order framed the issue No.3-A to the effect that whether plaintiffs prove that defendant is not an agriculturist and so he has no right to purchase the suit land? 3.2 Being aggrieved and dissatisfied with the impugned order of framing issue No.3-A, petitioners-plaintiffs have preferred the present Special Civil Application. SCA/13378/2008 3/4 JUDGMENT 3.3 Petitioners-plaintiffs cannot be directed to prove whether defendant is not an agriculturist. Such a negative is not required to be proved by the plaintiffs. When the defendant is asserting that he was an agriculturist and therefore he could have purchased the suit property, the burden would be upon him to prove the same and the negative was not required to be proved by the plaintiffs that defendant is not an agriculturist. Such an issue is against the principles of Evidence Act which cannot be sustained. Even otherwise, Shri R.M.Chhaya, learned advocate appearing on behalf of the respondent has submitted that defendant has no objection if the aforesaid issue No.3-A is recast and burden to prove that defendant was agriculturist is cast upon the defendant. 4. Under the circumstances and in view of the above, issue No.3-A would be as under: “Whether the defendant proves that he is/was agriculturist and therefore he could have purchased the suit land?” 5. Shri R.M.Chhaya, learned advocate appearing on behalf of the respondent has also stated at the bar under the instructions from his client that he has also no objection if the application Exh.159 is allowed and the issue sought to be added are framed. Accordingly application Exh.159 is also allowed and the issues sought to be framed vide application Exh.159 are also directed to be added after issue No.3-A. 6. In the facts and circumstances of the case and even the suit is required to be disposed of at the earliest as directed by SCA/13378/2008 4/4 JUDGMENT the Hon'ble Supreme Court in the year 1994, the learned trial court is directed to see that the suit in question which is of the year 1983 is decided and disposed of positively, on or before 30th June, 2009. All concerned are directed to co-operate the learned trial court in early disposal of the suit and within the stipulated time as stated above. Learned advocates appearing on behalf of the respective parties have stated that their counter-part shall not ask for any unnecessary adjournments and the trial court to see that the suit is not unnecessary adjourned. The learned Principal District Judge, Surat, is directed to see that the aforesaid suit which is of the year 1983 is decided and disposed of within the stipulated time as stated above and submit the report this Court accordingly. 7. With these, present petition is allowed to the aforesaid extent. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs. ( M.R. SHAH, J. ) syed/