KAPUR, J. - (1.) A suit was filed by the respondent for specific performance of contract against the defendant petitioner. Issue No. 1 as framed reads as under- ******
(2.) THE burder of proof has been placed on the defendant petitioner and he moved the court below for amending the issue on the ground that the burden of proof always lies upon the party which alleges certain facts but the trial court namely Additional District Judge No. 2 Bharatpur by his order dated 19th July 1995 has dismissed the application. THE petitioner has therefore, preferred this revision petition. The first objection of the learned counsel for the respondent is that the revision petition against wrong allocation of burden of proof is not maintainable as the ground can be taken in appeal. He has placed on a Full Bench decision of this Court in Nagori lbrahim vs. Shahji Babumal (1 ). In this case it has been held that the wrong allocation of burden of proof is likely to result in prejudice to the party on whom the burden is wrongly put and is, therefore, likely to affect the decision of the suit on merits. Earlier conflicting decisions were disscussed and it was held that the revision was not maintainable. In taking this view the Court approved the opinion of this Court in the case of Purohit Swaroop Narain vs. Gopi Nath There are later decisions of this Court and one of them is Harish vs. Somnath (3) in which the decisions of other High Courts have been considered. In this case it has been held that the High Court may interfere in revision even if it finds that additional issue arises out of the pleadings on record. The Single Judge in Harish vs. Somnath (supra) did not follow the Full Bench decision of this Court in Nagauri lbrahim's case and reason is that the Supreme Court in Major S. S. Khanna vs. Brig. . F. J. Dillon (4) has over ruled the view of this Court in Pyar Chand vs. Dungar (5) and Swaroopnarain vs. Gopi Nath (Supra ). Though the case of Nagori lbrahim (supra) has not been referred and has not been specifically over ruled in the case but when the view of Full Court is based on a decision which itself has been over ruled by the Supreme Court then it means that the view taken in lbrahim Nagori's case (Supra) does not stand approved by the Supreme Court and it cannot be said to be good law. Thus, the preliminary objection about the maintainability of revision is decided against the non-petitioner. I have heard the revision petition on merits. Under O. XIV CPC issue arises when a material proposition of fact, or law is affirmed by the one party and denied by the other. Issue may be of fact and issues may be of law and the court after reading plaint and written statement and after examining either party under rule 2 of O. X ascertain upon what material proposition of fact or of law the parties are at variance. Under rule 3 of O. XIV the court may frame issuser on (a) allegations made on oath by the parties , or by any person present on their behalf , or by the pleaders of such parties; (b) allegations made in the pleadings or in answer to interrogatories delivered in the suit; (c) the contents of documents produced by either party. Thus while framing issues the court should not confine itself to the plaint and written statement only but it can consider other material also and this includes the contents of the documents. In the present case , the agreement on basis of which specific performance is sought contains the description of all the property which is covered by the agreement and the execution of this document is admitted by the defendant , though he says that it was not read over and explained to him. In view of the description of the property in the agreement itself the execution of which is admitted the party which alleges that the subject matter of the agreement was not property described in the agreement but was some thing different then it will be for that party to prove that the agreement was not in respect of the property described in the agreement but in respect of some different property or some different description of the same property. The learned counsel for the petitioner has placed reliance on A. Raghavamma & Anr. vs. A Chenchamma (6) wherein distinction between burden of proof and onus of proof has been considered and it has been held that burden of proof lies upon the person who has to prove a fact and it never shifts , but the onus of proof shifts. Such shifting of onus is a continuous process in the evaluation of evidence. Besides this Section 18 of the Specific Relief Act and Section 53a of the Transfer of Property. A have also been cited in order to show as to what will be the position when the agreement cannot be executed. These matters cannot be discussed at this stage as they would arise in the decision of the suit itself. What is to be seen at present is only about the correctness of the burden of proof. On basis of the pleadings and contents of the documents it cannot be said that the burden of proof has been wrongly placed. Therefore, the revision petition has no force and is dismissed. . ;