( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 4877 OF 2008 Tukaram Dhondiba Jagdhane and others. PETITIONERS VERSUS Hari Shankar Gangavane and others. RESPONDENTS ..... Mr. S.S. Bora, advocate for the petitioners. Mr. R.A. Tambe, advocate for respondents No.1 and 2. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 15th July, 2009] PER COURT : 1. Heard. 2. The suit filed by the petitioners is for declaration of ownership and that the sale-deed dated 10-03-1992 executed by defendant No.3, since deceased, in favour of original defendants No. 1 and 2/respondents No. 1 and 2 is not binding on them. According to the ( 2 ) plaintiffs, the suit land bearing Gat No. 211 is the self-acquired property of their father, namely, Dhondiba, who is the original plaintiff. The deceased respondent No.1 executed the sale-deed dated 10-03-1992 and the purchasers have come out with a case that the deceased defendant No. 3 was manager of the joint Hindu family and the land in question was owned by the undivided Hindu family. The petitioners filed an application seeking leave to recast the issues in view of the subsequent development and the contentions raised by the contesting defendants/purchasers. It was urged that burden of proof shall be placed on the purchasers to establish that the land in question belonged to the undivided Hindu family and that the deceased defendant No. 3 was entitled to transfer the same being manager of the undivided Hindu family. It was further urged that the issue regarding legal necessity was also required to be framed. 3. The litmus test is to see as to who would fail if the proposed issues are not framed. The issues are required to be framed having regard to purport of Order- ( 3 ) IV Rules 1 and 2 of the Code of Civil Procedure as well as the impact of sections 101 to 106 of the Evidence Act. In the present case, if no proof is adduced by any party, the natural fall-out would be that the plaintiffs would be non-suited. It is for such reason that initial burden is on the plaintiffs to prove their case. The Court has already framed issue as regards the allegation of the plaintiffs in respect of the suit property being his self-acquired one. The application came to be rejected. Still, however, in order to avoid multiplicity of litigation, the Civil Court may frame an additional issue being issue No. 4-A as below : “Whether it is proved that the sale-deed dated 10-03-1992 executed by deceased defendant No. 3 in favour of the defendants No. 1 and 2 was on account of legal necessity or for benefit of the undivided Hindu family and in capacity of the deceased defendant No. 3 as a manager thereof and, therefore, would be binding on the plaintiffs.” 4. It is further clarified that the observations in the impugned order rendered by the learned Civil ( 4 ) Judge as regards existence of the undivided Hindu family and the property being prima facie owned by the undivided Hindu family, be not considered at all while deciding the suit on merits. With these observations, the writ petition is disposed of. [ V.R. KINGAONKAR ] JUDGE NPJ/WP4877-08