1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.736 OF 2010 1. Shrirang Rama Ghoble Age : 63 years, Occ : Pensioner, R/o Sangita Colony, Aurangabad. 2. Dr.Trimbak Rama Ghoble Age : 57 years, Occ : Lecturer, R/o Vidyanagari Campus, Mumbai Vidyapith, Kalina Shantakruj (East), Mumbai-98. 3. Smt.Mudrikabai Shivram Ghodke Age : 61 years, Occ : Household, R/o Nandgaon, Tq. & Dist.Latur. ..PETITIONERS VERSUS- 1. Shivaji Chokhoba Ghoble Age : 57 years, Ex-Servicemen, R/o Nandgaon, Tq. & Dist.Latur, presnetly at "Laxmi-Kunj", Bhim Nagar, Aurangabad (Bhausingpura) 2. Dnyanoba Chokhoba Ghoble Age : 47 years, Occ : Labour, R/o Nandgaon, Tq. & Dist.Latur. 3. Smt.Laxmibai @ Shantabai W/o Chokhoba Ghoble Age : 69 years, Occ : Household, R/o Nandgaon, Tq. & Dist.Latur. 4. Mrs.Kalwati W/o Bhimrao Yedekar Age : 66 years, Occ : Household, R/o Mahapur, Tq.Renapur, Dist.Latur. 5. Smt.Mathura Gangadhar Ghoble Age : 70 years, Occ : Household, R/o Nagpur-chal, Adjacent to Saibaba Mandir, Yerwada, Pune-6. 2 6. Rajkumar Gangadhar Ghoble Age : 36 years, Occ : Labour, R/o Nagpur-chal, Adjacent to Saibaba Mandir, Yerwada, Pune-6. 7. Suraj Gangadhar Ghoble Age : 26 years, Occ : Service, R/o Nagpur-chal, Adjacent to Saibaba Mandir, Yerwada, Pune-6. 8. Smt.Shalubai Babasaheb Kamble Age : 31 years, Occ : Household, R/o Nagpur-chal, Adjacent to Saibaba Mandir, Yerwada, Pune-6. 9. Smt.Asha W/o Sanjay Kamble Age : 28 years, Occ : Household, R/o Nagpur-chal, Adjacent to Saibaba Mandir, Yerwada, Pune-6. 10. Dr.Bhiwaji S/o Chokhoba Ghoble Age : 55 years, Occ : Household, R/o Agashti Colony, N-9, CIDCO, Aurangabad-431 001. 11. Gautam Chokhoba Ghoble Age : 43 years, Occ : Labour, R/o C/o. Sarjerao Ganpat Waghmare Hingnewadi, Tq.Morsi, Dist.Pune-57. 12. Dushyant Chokhoba Ghoble Age : 39 years, Occ : Labour, R/o C/o. Sarjerao Ganpat Waghmare Hingnewadi, Tq.Morsi, Dist.Pune-57. 13. Mrs.Vandana W/o Dhanraj Nagtile Age : 26 years, Occ : Household, R/o Sambhaji Nagar, Indrasagar, Near Kalamba Filter House, Kolhapur. 3 14. Mrs.Meenabai W/o Suresh Hunde, Age : 24 years, Occ : Household, R/o Sambhaji Nagar, Indrasagar, Near Kalamba Filter House, Kolhapur. ..RESPONDENTS ......... Mr.P.M. Gaikwad, advocate for petitioners. Mr.S.S. Choudhary, advocate for respondent nos.1 to 4. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 21 st July, 2010. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally. 2. By this Petition, the petitioners challenge the order passed on application (Exh.41) for allowing framing of additional issue. The petitioners objected the framing of such additional issue as was sought by the respondents/plaintiffs. Their objection has been overruled by the trial Court. 3. The respondent nos.1 to 4 filed suit for partition and separate possession in respect of one agricultural land bearing block no.176, admeasuring 2H 02 R, on the allegation that it is property of their joint family. The petitioners came out with the case that the suit land was purchased by deceased Rama, who was father of defendant nos.1 and 2 i.e. petitioner nos.1 and 2. They 4 submitted that the suit land was never held by joint Hindu family and that it was separately acquired by deceased Rama. According to them, after about period of 40 years such contention of joint acquisition was erroneously raised by the plaintiffs/respondents. The plaintiffs filed application (Exh.41) seeking framing of additional issue as follow : "As to whether the defendants nos.1 to 3 prove that the suit land is self-acquired property of Ram, the father of defendant nos.1 and 2 ? The application was allowed vide the impugned order. 4. Heard learned counsel for the parties. I have perused the pleadings of the parties and issues which were framed below Exhibit-39. 5. It is pertinent to notice that the very first issue framed by the trial Court reads as follows : "Does Plaintiff prove that suit property was purchased from joint family nexus ?" It is important to notice that the trial Court did not consider the legal presumption available under the Hindu Law. 5 There may be presumption about jointness of the brothers. Still, however, there can not be presumption regarding availability of joint nucleolus. It is well settled that when the property is acquired in the name of one of the brothers then the burden on other brothers is to establish that there was availability of joint nucleolus when such acquisition is made. Considering the legal position, the burden was rightly put on the plaintiffs. Infact, there are grammatical mistakes appearing from the wordings of the issues which are framed below Exh.39. The issue no.1 should be framed as below : "Do the plaintiffs prove that the suit property was acquired by utilising joint family nucleolus ?" 6. The first issue itself could suffice the purpose and framing of separate additional issue is absolutely unnecessary. The impugned order shows that such additional issue is framed only because the written statement of the petitioners reflected avernments that the acquisition was made by deceased Rama. The trial Court seems to have confused itself while appreciating the concept of onus-probandi and burden of proof. It is not necessary to frame the additional issue which is, infact, another part of the same coin, namely, that of the issue no.1. 6 7. In the result, the Petition is allowed. The impugned order is set aside as the same is found to be perverse. Rule made absolute accordingly. No cots. (V.R.KINGAONKAR) JUDGE gas/wp736.10