J.V. Gupta, J. - (1.) This petition is directed against the order of the trial court dated 2nd June, 1987, whereby the application filed on behalf of the plaintiff under Order 14, Rule 5, Civil Procedure Code, for changing the onus of the issues was dismissed.
(2.) The plaintiffs filed a suit for possession and permanent injunction challenging the sale deed dated 2nd Dec., 1976, alleged to have been executed by Shri Jai Singh deceased without any legal necessity, as the property was a co-parcenary one. Likewise, they challenged the decree dated 29th May, 1982, being illegal, void and collusive. On the pleadings of the parties, issues were framed on 25th March, 1987 whereby the onus was laid on the plaintiffs prove the allegations in affirmative. By filing an application under Order 14, Rule 4, Civil Procedure Code, plaintiff Hardip Singh prayed that the onus of their allegations be shifted upon the defendants. The trial court dismissed the application with the observations that "it is positive assertion by the plaintiffs/applicants who have challenged the sale- deed dated 2.12.1976 and decree dated 20.5.82; as such the plaintiffs/applicants are to prove what they assert by way of this suit. Hence the onus of issues No. 2 and 3 framed on 25.3.87 was rightly placed upon the plaintiffs/applicants."
(3.) Learned counsel for the petitioner-plaintiff submitted that in view of para 244 of Hindu Law by Mulla, it was for the vendees to prove that the sale was for legal necessity. Thus, argued the learned counsel, the onus should have been shifted on the defendants.;