SA/21/2022
2025 Latest Caselaw 4578 UK

Uttarakhand High Court

SA/21/2022 on 23 September, 2025

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

              Office Notes,
             reports, orders
             or proceedings
SL.
      Date    or directions                  COURT'S OR JUDGE'S ORDERS
No.
             and Registrar's
               order with
               Signatures
                               SA No.21 of 2022
                               Hon'ble Rakesh Thapliyal, J

                               1.    Mr. U.K. Uniyal, learned Senior
                               counsel, assisted by Mr. Sandeep Kothari
                               and Mr. Neelaabh Bisht learned counsel
                               for the appellant.
                               2.    Mr. Jagdish Chandra Belwal and Mr.
                               Kailash Chandra Tewari, learned counsel
                               for the caveator.
                               3.    Arguments heard at length.
                               4.    Brief facts of the case are that a suit
                               for    partition    was     filed   by    the
                               respondents/plaintiff, which was decreed,

against which the civil appeal was preferred, that too was also dismissed.

5. Mr. U.K. Uniyal, learned Senior counsel argued that the suit was barred by limitation since as per the plaint itself the plaintiff was fully aware about the family settlement of 2000, but the suit was filed in the year 2011. Apart from this, Mr. U.K. Uniyal, learned Senior counsel, also argued that the onus to establish that the property in respect of which the partition was prayed for, is excluded from the settlement, is shifted upon the defendant by the trial Court, which is not permissible. In support of this, Mr. U.K. Uniyal placed reliance on the judgment of Apex Court in the case of Kesharbai alias Pushpabai Eknathrao Nalawade (Dead) by LRS. And Another versus Tarabai Prahbakarrao Nalawade and Another (2014) 4 SCC 707, wherein it has been categorically held that once a partition is proved to have happened the onus to prove that certain properties were excluded from the said partition lies on the party who asserts that such properties were excluded.

By placing reliance on the aforesaid judgement, Mr. U.K. Uniyal learned Senior counsel for the appellant argued that the trial Court committed error in law by shifting the burden of proof on the defendants.

6. On the other side, Mr. J. C. Belwal who appears for the respondents/plaintiff argued that the issue of limitation was carefully dealt with by the trial Court and so far as the onus of proof is concerned, the trial Court rightly shifted that burden upon the defendants particularly when the plaintiff is praying for partition in respect of the property which was not the part of the family settlements. He also submits that seeking partition is recurring cause of action and specific averments were made in para No.11 of the plaint.

7. I have also perused the judgment of the trial Court and what I have observed that admittedly the suit was filed for the partition in respect of the property, the description of which was given at the foot of the plaint and there was a specific case of the appellant/defendant that the property in respect of which the partition is being sought was also the part of the family settlement, therefore, in such an eventuality, this Court is primarily of the view that the trial Court should also frame an issue "whether the property in respect of which the partition is being sought was the part of family settlement or not?"

8. Learned counsel for the parties fairly submits that admittedly the dispute is in between the family members and both of them submit that the efforts may be made for their amicable settlement.

9. On their joint request, list this matter on 07.10.2025.

10. On that day, the parties either may appear physically or to join the proceeding through V.C.

(Rakesh Thapliyal, J.) 23.09.2025 R.Bisht