Civil Rev. 5612 of 2008 1 IN THE PUNJAB AND HARYANA HIGH COURT, CHANDIGARH Civil Rev. 5612 of 2008 Date of decision: 31.8.2009 Gurbhej Singh Petitioner vs Prithpal Singh and others Respondent Present Mr. Padam Jain, Advocate Mr. Pyush Bansal, Advocate for Mr. Amit Aggarwal, Advocate. M.M.S.BEDI,J. An application filed by the plaintiff- petitioner for framing of additional issues on the basis of the amended written statement field by the defendants has been dismissed by the trial court vide order dated 11.8.2008. After going through the pleadings, it appears that the plaintiff had filed a suit for possession of property measuring 1 kanal out of 1 kanal 7 marlas, situated in village Dera saidan, Tehsil Sultanpur Lodhi, District Kapurthala comprised in khasra No. 9//16/1/2/ (1-7) as per jamabandi for the year 1999-2000 after demolition of the unauthorized structure raised by the defendant-respondents. The defendant- respondents by way of amended written statement had taken up a new plea that khasra No.9//16/1 (3-3) was not in existence and the original owner Mool Chand did not have the ownership rights in the property sold by him nor his legal heirs were Civil Rev. 5612 of 2008 2 owners or competent to alienate the property. The trial court has dismissed the application observing that the issues are already framed and the proposed issues are covered in the substantial issues regarding possession, as such no new issues are required to be framed. After considering the facts and circumstances of the case, I am of the opinion that the defendant- respondents have raised new pleas, even objecting to the title of vendor of plaintiff Mool Chand, besides raising a plea that they are in adverse possession. They have also claimed the defence of easement in the amended written statement. As per Section 102 of the Indian Evidence Act, the burden of proof in a suit or proceedings lies on that person, who would fail if no evidence at all were given on either side. As per the pleadings of the plaintiff, he is not required to lead any evidence on the pleas, which have been raised by the defendants in the written statement. It is defendant-respondents, who have to substantiate the pleas of adverse possession and easement and non existence of right in Mool Chand to sell the property to the plaintiff. Learned counsel for the respondents has placed on record a copy of the judgment passed by Sub Judge Ist Class, Kapurthala dated 16.1.1973 in a suit for recovery in favour of Mool Chand, wherein a reference has been made that he had sold the property in dispute to Ujjagar Singh. In case the defendant-respondents have to establish that Mool Chand did not have any right in the property, purchased by the plaintiff, they will have to produce evidence as onus lies upon them u/s 102 of the Indian Evidence Act. In view of the above, the revision petition is allowed, the Civil Rev. 5612 of 2008 3 impugned order dated 11.8.2008 is hereby set aside and the trial court is directed to reconsider the matter minutely in the light of the provisions of Sections 101 and 102 of the Indian Evidence Act and frame the additional issues, if necessary, in accordance with the pleadings of the parties. The parties are directed to appear before the trial court on the date fixed for further proceedings. Disposed of. August 31 ,2009 ( M.M.S.BEDI ) TSM JUDGE