1 wp 8474.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8474 OF 2011 Deelip Shamrao Patil .. Petitioner Versus Lochanbai Shamrao Patil and others .. Respondents Shri A. V. Patil, Advocate for the Petitioner. CORAM : S. V. GANGAPURWALA, J. DATE : 15TH NOVEMBER, 2011. PER COURT : . The petitioner is the original defendant No. 1. The respondent Nos. 1 to 3 filed a suit for partition and separate possession. The evidence of both the parties is concluded. The petitioner moved an application for framing of additional issues on the ground that the issues which are already framed does not cast proper burden. The said application is rejected. Aggrieved thereby the present petition is filed. 2. Shri A. V. Patil, the learned counsel for the petitioner submits that the issue No. 1 as is framed is not permissible, 2 wp 8474.11 when the plaintiffs come with a case that the suit properties are joint family properties. Then the burden lies upon the plaintiffs to prove a particular fact. But on the contrary issue No. 1 cast burden on the defendants to prove that property bearing G. P. No. 332 been self acquired property. The learned counsel contends that the proper issues are required to be framed so as to enable the parties to lead appropriate evidence. This aspect has also not been considered. Even the Court ought to have framed the issue about maintainability of suit and of res-judicata in view of the earlier proceedings. 3. With the assistance of the learned counsel I have gone through the pleadings and the order impugned in the present petition. No doubt, there is a presumption of a joint family, but there is no presumption of a property held by member of joint family to be of joint family property, unless a nucleus is proved. 4. The parties have adduced their evidence. When both the parties have adduced the evidence, the concept of burden of proof looses its significance. It is not the case of the petitioner in the application that the petitioner was prejudiced to adduce the evidence on the basis of the issues framed. Issue No. 3 deals 3 wp 8474.11 with the burden upon the plaintiffs. It is only if the plaintiffs prove the properties to be joint family properties, then the issue No. 3 can be answered in favour of the plaintiffs and that would cover the whole gamut of the case. 5. As far as issue of res-judicata is concerned, there is no pleading to that effect. Moreover, earlier application was filed regarding the issue of res-judicata, which was rejected. 6. In the light of above no case for interference is made out. The petition is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/Nov. 11