1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7055 OF 2008 Shri Dr.Subhash Rajaram Patil & Anr. ..Petitioners. V/s. Shri Adhikrao Rajaram Patil. ..Respondent. Mr.Umesh R. Mankapure for petitioners. Ms.Manisha Shekhar i/b. M/s.J.Shekhar & Co. for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 25, 2009. DATE : MARCH 25, 2009. DATE : MARCH 25, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Ms.Manisha Shekhar waives notice for Respondent. 3. As short question is involved, Petition is taken up for final disposal forthwith by consent. 4. The limited controversy raised in this Petition is in the context of recasted issue No.3 in terms of the Order passed by the Civil Judge, Sr.Division, Sangli dated 8th July, 2008. The same 2 reads thus: "3. Does Defendant No.2 proves that the sale deed dated 4.8.1992 was executed for lawful consideration ?" 5. After having considered the rival submissions and going through the pleadings, I am in agreement with the argument of the Defendant No.2 that the burden of proving the fact that the sale deed was executed for lawful consideration cannot be primarily placed on the Petitioner/Defendant No.2. For, it is the Plaintiff who is challenging the sale deed dated 4th August, 1992 as hollow and unlawful. Besides, the said recasted issue would be inconsistent with the the original issues No.1 and 2 framed by the Trial Court, which rightly places onus on the Plaintiff to prove the fact that the stated sale deed executed in favour of the Defendant No.2 is hollow and without consideration. 6. To get over this position, Counsel for the Respondent/Plaintiff submits that in view of the stand taken by the Defendant No.2 in the Written Statement at page 33 of the paper book (internal page No.9 of the document) which is part of paragraph-7 of 3 the Written Statement, it is the Defendant’s case that he had paid amount of Rs.2,07,500/- to the Plaintiff and the Defendant will have to establish that fact. There is no difficulty in accepting this argument. However, even on accepting this argument, the recasted Issue No.3 cannot be sustained. The same is therefore set aside and instead it is modified as follows: "Does the Defendant No.2 prove that she had paid amount of Rs.2,07,500/- to the Plaintiff towards consideration of sale deed dated 4th August, 1992 ?" 7. Accordingly, all other issues will remain intact except the change in relation to the recasted issue No.3, as aforesaid. The Trial Court shall proceed accordingly. 8. Petition disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)