Ashwani Kumar Mishra, J. - (1.) In a suit for injunction, issue no.1 was framed as to whether the plaintiff is owner in possession of the suit property. This issue has been answered against the plaintiff respondent, and the suit itself was dismissed. An appeal under Section 96 CPC has been preferred, which is pending. During pendency of the appeal, an amendment in the plaint was sought, which was allowed on 29th March, 2008. Pursuant to the amendment, allowed, which was not challenged, an additional issue No.10 was framed by the appellate court as to whether the disputed property has been acquired for the defendants petitioners or not. The defendants petitioners have moved an application stating that issue no.10 has been erroneously framed, as the question to be adjudicated, is already covered by issue no.1, framed by the trial court. This objection of the defendants petitioners has been rejected, against which the present writ petition has been filed.
(2.) Learned counsel for the petitioners submits that the suit is for injunction, and it can succeed only if the plaintiff can demonstrate that he is the owner in possession of the land. Submission is that by framing issue no.10, a negative burden has been put on the defendants petitioners, which otherwise was covered by issue no.1, and therefore, the order passed in appeal is bad in law.
(3.) Learned counsel for the respondent plaintiff, on the other hand, submits that neither the order allowing amendment in the plaint is under challenge nor the framing of issue no.10 by order dated 17.4.2008 has been questioned. Only the order rejecting the application of the defendants petitioner is under challenge. It is submitted that question as to whether the land has been acquired for the defendants, is a relevant issue, which is required to be gone into, as the parties essentially are at issue on the question as to whether the land has been subjected to acquisition or not, and therefore, the orders passed by the court below require no interference.;