1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.7972 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr.M.M.Bhokarikar, advocate for the petitioners. CORAM : S.V.GANGAPURWALA,J. Date : 13.12.2011. PER COURT : 1. Heard. 2. Mr.Bhokarikar, learned counsel seeks leave to delete prayer clause (e) with liberty to assail the order as referred in prayer clause (e) by a separate petition. 3. The Respondent is the original plaintiff, has filed suit for declaration about the General Power of Attorney and the sale deeds. The Court in view of the pleadings of the parties framed following issues : "1. Whether defendants prove that general power of attorney dated 14.8.1998 alleged to have been executed by plaintiff, is executed by her only and it is genuine one. 2. Whether plaintiff proves that,she is in possession of suit 2 property. 3. Whether plaintiff proves that, she is entitle for relief of declaration and injunction as prayed for." The present petitioners filed an application for deleting issue No.1. The said application is rejected. The petitioner also filed an application for stay of the Civil proceedings on the ground that Criminal proceedings are also pending. It appears that the said application is also rejected. Aggrieved thereby, the present Writ Petition is filed. 4. Mr.Bhokarikar, learned counsel for the petitioners vehemently contended that the Court has wrongly cast burden upon the petitioner as far as Issue No.1 is concerned. The burden lies upon the plaintiffs to prove the fact. As per Section 85 of the Evidence Act, a presumption is given to the General Power of Attorney. The present General Power of Attorney is a registered General Power of Attorney and as such presumption U/s 85 of the Evidence Act is attracted. The learned counsel relying on Section 101 of the Evidence Act, contends that one who asserts has to prove a particular fact. The learned counsel contends that in view of Order 14 Rule 1 of the C.P.C., the issue would not arise at all. The learned counsel relies on the judgment of the Apex Court in a case of "Sita Ram Vs. Radha Bai and others" reported in AIR 1968 Supreme Court 534, in a case of "Anil Rishi Vs. Gurbaksh 3 Singh" reported in 2006 (6) Mh.L.J. 280, the judgment of the learned Single Judge of this Court in a case "Upaso Kustha Prabhu Dessai and others Vs. Dattu Shanu Prabhu Dessai and others" reported in 1998 (1) Bom.C.R. 389. 5. With the assistance of the learned counsel, I have gone through the pleadings, issues and the impugned order. 6. The issue No.3 is framed by the Court which cast burden on the plaintiff to prove whether she is entitled for the relief of declaration and injunction as prayed. The relief of declaration is with regard to all documents. As such it can not be said that no burden has been cast upon the plaintiff. The issue No.1 cast burden upon the defendants to prove about the execution of the General Power of Attorney by the plaintiff. The burden to prove a document lies upon a person who asserts a particular fact. In that light of the matter, the framing of issue No.1 can not be faulted with. 7. The presumption which is laid down is always a rebuttal presumption. The presumption is not conclusive. So in such circumstances, the Court while framing issue has also cast burden upon the plaintiff as to whether she proves that she is entitled for the relief of declaration as is claimed by the plaintiff. The defendant is also asserting in his Written Statement about the due execution of the said document by the plaintiff, the burden is also cast upon the 4 defendant. No error can be found in that regard. In the present case the burden of two issues is cast upon the plaintiff and one issue is cast upon the defendants. In view of the provisions of the C.P.C., it is the plaintiff who has to begin the evidence first and may reserve the right of rebuttal in respect of the issue on which the burden lies upon the defendants. In view of the issues framed, even otherwise it is the plaintiff who has to adduce the evidence first. The judgment of the Apex Court in a case of "Anil Rishi Vs. Gurbaksh Singh" referred supra also deals with the question of onus of proof and it lays down the question of onus of proof has greater force, where the question is, which party is to begin. In the present case, in view of the issues framed, it is the plaintiff who has to begin the evidence and in view of the fact that the defendants have also pleaded asserting the fact that the plaintiff has executed General Power of Attorney in her favour, it can not be said that the issue has been wrongly framed. The same is properly framed as per Order 14 Rule 1 of the C.P.C. 8. The Writ Petition as such is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.13.12.2011. asp/office/wp7972.11 5