- (1.) By way of the instant writ petition, the petitioner has beseeched to quash and set aside the order dated 11th March, 2010 whereby the learned Additional District Judge (F.T.) No.5, Jaipur City, Jaipur dismissed the application filed under Order 14 Rule 5 of CPC by the petitioner-defendant seeking amendment of issues settled by the Court on 4th January, 2010.
(2.) Having considered the submissions made at the bar and carefully perused the contents of plaint as also the written statement of defence, it is noticed that a suit came to be filed by respondent No.2 against the petitioner-defendant, praying for partition and injunction of the disputed plot. Respondent No.2-Sumer Singh is found to have averred that he was the adopted son of Hari Singh and thus joint owner of disputed plot No.D-4, situated at Mira Marg, Banipark, Jaipur. After the demise of Harisingh, he became the sole owner of the plot in question. The plea of the petitioner-defendant is that Sumer Singh-respondent No.2 is not the adopted son of Harisingh and thus, he cannot be said to be the sole owner of the disputed land.
(3.) Learned counsel for the petitioner canvassed that since respondent No.2-Sumer Singh came out with the case that he was the adopted son of Harisingh and the petitioner had rebutted it, hence, the learned trial Court ought to have settled the issue in affirmative form, and onus to prove the issue ought to have been laid on respondent No.2, whereas, the learned trial Court has settled the issue in negative form and burden to prove the issue has also been laid on petitioner-defendant which is not in consonance with the pleadings of the parties. Learned counsel for the respondent No.2 has agreed to the submission made by the learned counsel for the petitioner. Hence, with the consent of both the learned counsel for the parties, Issue No.3 is modified as under:;