C.R.No.6755 of 2009 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.6755 of 2009 Date of decision: 5.4.2010 Jagjit Singh and another .....Petitioners vs. Smt.Neeru Dayal and others ....Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.Sanjeev Trikha, Advocate, for the petitioners. Mr.J.C.Kapoor, Advocate, for respondent No.2. Ms.Harmanapreet Kaur, Advocate, for Ms.Alka Chatrath, Advocate, for respondent No.3. -- Rakesh Kumar Garg,J.(Oral) This is plaintiffs' revision petition challenging the impugned order dated 9.11.1009 whereby their application under Order 14 rule 5 of the Code of Civil Procedure, for re-framing the issues has been rejected. Petitioners filed a suit for declaration that will dated 6/8.2.2002 in favour of defendant No.1 was illegal being an outcome of fraud with further relief of permanent injunction. The following issues were framed in the suit by the trial Court on 29.11.2002:- 1.Whether Will dated 6/8.2.2002 in favour of defendant No.1 is illegal and outcome of fraud, coercion and undue influence ? OPP 2.Whether the plaintiff is entitled for permanent injunction as prayed for ?OPP C.R.No.6755 of 2009 2 3.Whether the suit is liable to be dismissed due to non-issuance of prior statutory notice U/s 80 CPC ?OPD 4. Relief. Challenging the aforesaid order, learned counsel for the petitioners submitted that the onus to establish the execution of a will lies upon the propounder of a will, thus the trial Court committed an error by placing the onus to disprove the execution of the will upon the petitioners. It is submitted that as the petitioners have raised a specific plea that the suit land is ancestral, the trial Court was required to frame an issue to that effect. On the other hand, learned counsel for the respondents has argued that the evidence has already been led by both the parties and the issues were rightly framed by the trial Court on 29.11.2002, as it was the the petitioners who have filed the present suit asserting that the alleged will is the result of fraud and coercion, and therefore, they were to prove their case. I have heard the learned counsel for the parties. It is well settled that the onus to prove a fact is on the party which asserts it. It is also well settled that burden of proof remains throughout the case exactly where the pleadings originally placed and it never shifts. Reliance can be placed on the judgment cited as A.Raghavamma and another v. A.Chenchamma and another, AIR 1964 Supreme Court 136. In the present case, it is the case of the petitioners that the Will is the outcome of the fraud and thus the trial Court had rightly framed the issues with regard to the Will. C.R.No.6755 of 2009 3 Moreover, in the present case, the evidence has been led by both the parties after understanding their respective case. At this stage the question of onus to prove an issue does not matter as it is well settled that where both the parties have produced all the evidence, even if the onus was wrongly placed, the findings may not be set aside merely for this reason. This view of mine is supported by a Full Bench judgment of this Court in Santu and another v. Sohan Lal and others, A.I.R.(38) 1951 Pepsu 33. Moreover, the burden of proof keeps on shifting. Even otherwise this application has been filed after a considerable delay and the plaintiff-petitioners never raised any objection regarding onus of proof earlier and have filed this application at the fag end of the case. Therefore, the argument raised by the learned counsel for the petitioners is without any force Dismissed. ( Rakesh Kumar Garg) Judge April 5, 2010 rk