Achutrao S/O Ramchandraji Thakre ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 6551 Bom

        wp973.17.J.odt                                                                                               1/5     


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          NAGPUR BENCH, NAGPUR


                                   WRIT PETITION NO. 973 OF 2017


        1]   Achutrao S/o Ramchandraji Thakre,
              Aged about 65 years, Occ.: Agriculturist.

        2]   Pradeep S/o Ramchandraji Thakre,
               Aged about 50 years, Occ.: Agriculturist.

        3]   Sadashivrao Bapuji Thakre,
              Aged about 90 years, Occ.: Agriculturist.

              All petitioner Nos.1 to 3 R/o-Inzala,
              Tah-Ghatanji, District-Yavatmal.                    .....PETITIONERS.

                           ...V E R S U S...

        1]   The State of Maharashtra,
               Through Collector, Yavatmal.

        2]   Civil Surgeon, Civil Hospital,
               Yavatmal.

        3]   Chief Officer, Nagar Parishad, Ghatanji,
                      Tah-Ghatanji,   District-Yavatmal.                               ......
        RESPONDENTS.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri A. V. Bhide, Advocate for the Petitioners.
        Shri A. R. Chutke, AGP for the Respondent Nos.1 and 2.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                           CORAM  :   S. C. GUPTE, J.

th DATE : 28 AUGUST, 2017.

ORAL JUDGMENT :

Heard learned counsel for the parties.

         wp973.17.J.odt                                                                                               2/5     


        02]                Rule. Rule made returnable forthwith and taken up for

        hearing with consent of counsel. 



        03]                The subject matter of challenge in the present petition is

an order passed by 3rd Joint Civil Judge Senior Division, Yavatmal

on an application for recasting of issues. The application was filed

by the petitioners (original plaintiffs). The plaintiffs' suit was for

declaration and possession against the respondents. The

respondents had raised a plea in their written statement that the

predecessor in title of the plaintiffs had executed a 'Danpatra' on 8 th

January, 1987, gifting the suit land to the respondents. When

issues were framed by the trial Court, no issue was framed

regarding the execution, subsistence or validity of the alleged

'Danpatra' of 8th January, 1987. The plaintiffs, accordingly, applied

for framing of an additional issue as regards the execution of the

'Danpatra'. The application was opposed by the defendants. The

learned trial Judge refused to recast the issues by framing an

additional specific issue concerning execution of the 'Danpatra'.

The only reasons given in the impugned order is that since the suit

is for declaration, possession and mesne profits, it is the duty of the

plaintiffs to prove title and possession, and that though the alleged

wp973.17.J.odt 3/5

gift deed (Danpatra) was available with the plaintiffs, it was not

produced by them on record. The plaintiffs were accordingly

directed to produce the alleged 'Danpatra' on record. Even this part

of the order is challenged in the present petition.

04] Every material proposition, that is to say, a proposition

of law or fact which either the plaintiff must allege in order to

show the right to sue or the defendant must allege in order to

constitute his defence, if affirmed by one party and denied by the

other, forms the basis of an issue to be framed in the suit. No

doubt, in a suit for declaration and possession, it is for the plaintiffs

to prove their title and possession. At the same time, the purported

execution of 'Danpatra' by the predecessor in title of the plaintiffs is

an allegation made by the defendants by way of defence. This is an

allegation of fact, or, at any rate, a mixed allegation of law and

fact. The allegation having been denied by the plaintiffs, it must

form the subject of a distinct issue. The impugned order of the

learned trial Judge, thus, cannot be sustained to the extent it

rejects the plaintiffs' application for recasting of the issues.

        05]                Even the impugned direction requiring the plaintiffs to





         wp973.17.J.odt                                                                                               4/5     

produce the alleged gift deed (Danpatra) on record suffers from a

serious infirmity. Inasmuch as the existence of the 'Danpatra' is

affirmed by the defendants and denied by the plaintiffs, there is no

question of directing the plaintiffs to produce the document of

'Danpatra' on record. It does not constitute the basis of the

plaintiffs' right to sue. The allegation of execution and subsistence

of the 'Danpatra' is a matter constituting the respondents' defence.

It is for them to bring the document on record and prove its

admissibility.

06] In the premises, Rule is made absolute by quashing and

setting aside the impugned order dated 10 th February, 2016 and

recasting the issues by framing the following issue as an additional

issue -

"Whether the defendants prove that the suit property is transferred to the hospital by plaintiff No.3 and/or late Narayan Amrutrao Thakre and Ramchandra Bapuji Thakre by executing a 'Danpatra' on 8th January, 1987 in favour of Rural Hospital, Ghatanji ?"

07] The responsibility of proving this fact inter alia by means

of leading evidence of the execution of 'Danpatra' on 8 th January,

1987 will be on the defendants and it will be for the defendants to

wp973.17.J.odt 5/5

produce and prove the document of 'Danpatra'.

08] The petition is disposed of in the above terms.

JUDGE PBP