1 wp8212.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION No. 8212 OF 2011 Devidas Dagdu Gaikwad and others PETITIONERS -VERSUS- Anusayabai Dagdu Gaikwad and another RESPONDENTS ...... Shri P.M. Gaikwad, advocate for the petitioners ...... CORAM : S.V. GANGAPURWALA, J. DATE : 20th October, 2011. PER COURT : 1. The petitioners are the original plaintiffs. Plaintiffs have filed the suit for cancellation of sale deed, perpetual injunction, restraining the defendants from interfering in their possession and with further injunction restraining the defendant no.2 from alienating the suit property or creating any third party interest. Trial Court framed the issues on 25.07.2011. Thereafter, matter was expedited and fixed for evidence. The plaintiffs filed application for framing of additional issues vide Exhibit-51. The said application came to be rejected. Aggrieved thereby, present Petition is filed. 2 wp8212.11 2. Shri Gaikwad, learned counsel for petitioners submits that the defendant in his written statement has taken burden upon himself by alleging that he is the owner and is in possession of the suit property. In view of the fact that the defendant has come with positive case about ownership and possession, the issue proposed to be framed is required to be proved by defendant as burden is upon the defendant to prove said fact. According to learned counsel, the person who avers a fact has to prove said fact and proposed issues are relevant for effectual and effective hearing of the suit. Learned counsel contends that the cost has been unnecessarily imposed upon the petitioners, the petitioners are not protracting the matter. The suit is of the year 2010. The issues were framed in July, 2011 and no such adjournments were sought so that the Court should impose cost upon the petitioners. 3. The issues framed by the Trial Court on 25.07.2011 are as under : 1. Do the plaintiff prove that sale deed executed by the defendant no.2 in favour of the defendant no.2 is null, void, ab-initio and not binding upon them ? 2. Do the plaintiff prove that, the plaintiff no.2 is in possession of the suit property ? 3. Do the plaintiff prove that the defendant are interfering with the peaceful possession of the plaintiff no.2 over the suit property ? 4. Do the plaintiff prove that, the defendant no.2 is illegally 3 wp8212.11 trying to alienate the suit property ? 5. Whether the plaintiffs are entitled for declaration as sought for ? 6. Whether the plaintiffs are entitled for injunction as sought for ? 7. What order and decree ? 4. The additional issues sought to be framed by application Exhibit-51 are as under : 8. "Do the defendant no.1 prove that, he is the owner in possession of the suit property." 9. "Do the defendant No.1 prove that, she handed over the actual possession of the suit property to the defendant no.2. 5. The plaintiffs have filed the suit claiming that they are in possession of the suit property and the defendants have illegally executed the sale deed. It is settled position of law that when both the parties adduce the evidence the concept of burden of proof looses its efficacy. The facts of earlier litigation would be relevant facts within the meaning of section 41 to 44 of the Indian Evidence Act. When the plaintiffs have came up with a case that they are the owners and they are in possession of the suit properties, initially the burden lies upon the plaintiffs to prove the same. After the plaintiffs discharged their initial burden, thereafter, the burden 4 wp8212.11 shifts on the defendants to disprove it. Issues which are already framed by the Court are sufficient to resolve the controversy between the parties. In view of that no error has been committed by the Court in rejecting application. So far as payment of cost is concerned, the Court has observed that defendant no.1 is senior citizen and matter was adjourned because of this application on two to three occasions. Be that as it may, I am not considering the said aspect in jurisdiction under Article 227 of the Constitution of India. 6. In the light of above, Writ Petition sans merits, stands dismissed. However, there is no order as to costs. [S.V. GANGAPURWALA] JUDGE ga s/wp 8212.11