1 wp 5949.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5949 OF 2011 Kalavati @ Kalabai Shankarrao Budhwant .. Petitioner Versus Yamunabai Shankarrao Budhwant and others .. Respondents Shri N. V. Gaware, Advocate for the Petitioner. CORAM : S. V. GANGAPURWALA, J. DATE : 09TH AUGUST, 2011. PER COURT : . The petitioner is the original defendant No. 3. The present respondent No. 1 has filed suit for partition and separate possession. The issues were framed. Thereafter, the plaintiff filed an application for recasting the issues. The same was allowed vide order dated 27 th July, 2011. Aggrieved thereby the defendant No. 3 has filed the present writ petition. 2. Shri Gaware, the learned counsel for the petitioner submits 2 wp 5949.11 that the petitioner is an age-old lady suffering from paralysis. Though the say was filed belatedly, the same was before passing the order. The Court did not grant any opportunity of hearing and without considering the say and without grant of opportunity of hearing to the petitioner straight way passed the order and recast the issues. According to the learned counsel, the issues have been recasted in such a manner that the burden is cast upon the petitioner. According to the learned counsel, the initial burden lies upon the plaintiff to prove the facts alleged and not on the defendant. In such circumstances, the order is bad in law. The learned counsel contends that the petitioner be given an opportunity to put forth her case in respect of recast of issues. 3. I have heard Shri Gaware, the learned counsel at length. With the assistance of learned counsel I have gone through the pleadings. The fact that the property was ancestral and the parties are claiming through Shankarrao is spelt out from the pleadings. The defendant No. 3 has taken the burden upon herself in the pleadings as she has stated that land gut No. 206 was allotted to her in partition and that land gut No. 225 was also transferred to her. So also in the pleading the defendant No. 3 wp 5949.11 3 alternatively claimed adverse possession. 4. Even assuming that the petitioner was not given an opportunity of hearing at the time of recast of issues, but on going through the issues that have been recasted, it appears that the same is inconformity with the pleadings of the parties. 5. No error of jurisdiction on the part of the Trial Court while passing the impugned order. As such, the writ petition is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/Aug. 11