Petitioners challenged an order rejecting their application to file an additional affidavit in a partition suit where the trial court had recast an issue placing the burden of proving the validity of a sale deed on respondents.
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P-3-WP.3668-16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition NO. 3668 OF 2016
MANOHAR LAXMAN SAWANT AND ANR.
...Petitioners
Versus
BHANUDAS VITHOBA BHOSALE AND ORS.
...Respondents
Mr. Vaibhav R. Gaikwad, Advocate for the Petitioners.
CORAM : R. G. KETKAR, J.
DATE : 28th MARCH, 2016
P.C.
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P-3-WP.3668-16.doc
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P-3-WP.3668-16.doc
deleting issue Nos.1 and 2 and for recasting issue No.7. Issue No.7 proposed by the plaintiffs is to the following effect :
not specified on what issues or subject they want to lead evidence. It is against this order, the plaintiffs have instituted the present Petition.
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P-3-WP.3668-16.doc
to 4 had purchased Gat No.73 admeasuring 2 Hectare and 36 Ares from Genu Bhau Mozar by registered sale deed and since then they are in possession of these lands. He submitted that the learned trial Judge has committed error in marking the sale deed as exhibit merely on the ground that it is 30 years old. The plaintiffs are not given any opportunity to lead evidence on issue No.7 which was recast pursuant to the application made by them. The plaintiffs therefore filed application for filing additional affidavit of evidence in support of issue No.7. He, therefore, submitted that the impugned order deserves to be set aside.
issue indicates that it was not clear as to on whom the burden was cast to prove this issue. The plaintiffs thereafter filed application on 8.3.2016 for deleting issue Nos.1 and 2 and
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P-3-WP.3668-16.doc
recasting issue No.7. Issue No.7 proposed by the plaintiffs was “Whether defendant Nos.1 to 4 prove that the sale deed dated 17.5.1934 is legal and valid”. The learned trial Judge accepted the application and deleted issue Nos.1 and 2 and recast issue No.7. Perusal of issue No.7 shows that the burden is squarely on defendant Nos.1 to 4 to prove legality and validity of sale deed dated 15.7.1934. In view thereof, I do not find that the learned trial Judge has committed any error in rejecting the application. It is for defendant Nos.1 to 4 to establish the legality and validity of the sale deed. It will be open to the plaintiffs to cross-examine the witness of defendant Nos.1 and 2. Understood thus, no case is made out for interfering with the impugned order. Petition fails and the same is dismissed.
Deshmane (PS)
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2 issues framed by the court
Whether the trial court erred in rejecting the petitioners' application to file an additional affidavit of examination-in-chief when the burden of proof lies with the respondents regarding the validit
Whether the recast issue No.7 affected the right of the petitioners to lead additional evidence.
MANOHAR LAXMAN SAWANT AND ANR.
BHANUDAS VITHOBA BHOSALE AND ORS.
R. G. KETKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
