C.R. No. 5566 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 5566 of 2009 (O&M) Date of Decision : 18.1.2010 Harpreet Singh(minor) through mother & others .......... Petitioners Versus Jalour Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Vivek Goel, Advocate for the petitioners. Mr. Ravish Bansal, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) The petitioners have invoked the jurisdiction of this Court under Article 227 of the Constitution of India to challenge the order dated 26.8.2009 ( Annexure P-2), passed by the learned Addl. Civil Judge ( Sr.Divn.), Faridkot, vide which the onus to prove issue No.1-B, which was initially placed on the plaintiff, has been changed and burden to prove shifted to the petitioners, who are the defendants in the suit. The plaintiff / respondent filed a suit for joint possession, by claiming that the alienation made by Jarnail Singh during his life time, was without consideration, legal necessity, thus inoperative and ineffective. This fact was denied by the petitioners. The petitioners moved an application under Order 14 Rule 5 of the Code of Civil Procedure for framing following additional issues :- C.R. No. 5566 of 2009 2 “(1-A) Whether the property in dispute was ancestral, HUF and coparcenary property in the hands of Jarnail Singh? OPP (1-B) Whether the alienations made by said Jarnail Singh in his life time, are without consideration, legal necessity, and thus are ineffective and inoperative?OPP (1-C) Whether any family partition took place in the year 1984 between the plaintiff, his father and brother? If so, its effect? OPD (1-2) (1-D) Whether Jarnail Singh, deceased bequeathed his property by way of a Regd. Will dt. 14.8.02 in favour of defendant No.1 (OPD-1)” The onus of issue No. 1-B was placed on the plaintiff, as it was for the plaintiff to prove, that the alienation was without consideration and legal necessity to succeed in a suit for joint possession. Thereafter an application, was moved by the respondent / plaintiff,by pleading, that it was for the defendants to prove, that the sale was for legal necessity and for consideration, and the onus to prove issue No. 1-B should be placed on the petitioner / defendants. The application stands allowed, by way of impugned order. The learned counsel for the petitioners contended that the reading of issue No.1-B would show that issue has been framed on the assertion of the plaintiff, therefore, it is for the plaintiff to prove the issue and not the defendants, as petitioner can not prove the negative. The learned counsel appearing on behalf of the respondent, however, supports the order on the contention, that it was for the defendants C.R. No. 5566 of 2009 3 to prove, that the sale was for legal necessity and consideration, as mentioned in the sale deed to protect the sale, therefore, the burden has been rightly placed on the petitioner / defendants, and no ground, therefore, is made out to interfere with the impugned order. On consideration, I find force in the contention raised by the learned counsel for the petitioners. It is now established, that the party asserting a fact is to prove the case set up. It is the case of plaintiff / respondent, that the sales made by Jarnail Singh during his life time were without legal necessity and consideration, therefore, it was for the plaintiff to prove this issue by leading evidence in affirmative. The onus of this issue, could not be placed on the petitioner / defendants to prove the negative. This revision petition is allowed. The impugned order dated 26.8.2009, regarding shifting of onus of issue No.1-B is set aside and the onus of issue No.1-B is placed on the plaintiff, as initially placed by the learned trial Court, while framing additional issues. No costs. 18.1.2010 ( VINOD K. SHARMA ) 'sp' JUDGE