JUDGMENT

S.B. SINHA , J :

Leave granted.

An order of remand passed by a Division Bench of the Delhi High Court dated 07.11.2003 passed in R.F.A. No. 435 of 1992 is in appeal before us.

The parties are sisters being the daughters of Shri Tara Chand Madan and Smt. Budho Bai (since deceased). Tara Chand Madan died on 21.03.1954. Smt. Budho Bai executed a deed of sale in respect of the property bearing No.16/26, Old Rajinder Nagar, New Delhi, by a registered deed dated 14.06.1965. She allegedly disowned Respondent No.1 as her daughter. A Will was executed by her on 22.02.1977, beneficiary whereof was said to be the appellant. Smt. Budho Bai died on 20.04.1980.

Appellant filed an application for mutation of her name. Respondent filed a suit for perpetual injunction, which was marked as Civil Suit No. 308 of 1980, claiming, inter alia, for the following reliefs :

"(a)A decree for perpetual injunction restraining the Defendant No. 3 from dealing the said property in any manner whatsoever and from getting the said property No. 16/26, situated at Old Rajinder Nagar, New Delhi, together with the lease hold rights of the land thereunder admeasuring 85 sq. yds. Or thereabouts substituted/transferred exclusively in her name to the exclusion of the Plaintiffs from Defendentrs Nos. 1 & 2 on the basis of the alleged WILL dated 22.02.1977 and also restraining the Defendants 1 and 2 from enforcing or acting in any manner whatsoever on the basis of the said alleged WILL dated 22.02.1977 and thereby transferring and/or substituting the said property in favour of the Defendant No. 3 to the exclusion of the Plaintiffs be passed in favour of the Plaintiffs and against the Defendants.

(b)The costs of the suit be also awarded against the Defendants."

According to the appellant, the said suit was not maintainable. It was dismissed as such by an order dated 18.12.1981, holding :

"The allegations of the plaintiffs being out of possession have not been denied and controverted with specifically and categorically in the corresponding paragraph of the replication to the written statement of defendant no. 3 and the suit is not maintainable unless the plaintiffs seek the remedy of possession in respect of their shares in the property in dispute. I do not agree with the counsel of the plaintiff that provisions of Section 31 are permissive."

The respondent filed another suit, which was marked as Suit No. 276 of 1992, for declaration and consequential relief. The said suit was also dismissed being not maintainable being hit under Order II Rule 2 of the Code of Civil Procedure. The learned judge, however, also dealt with the other issues involved in the suit.

In the Appeal filed by the respondents, the High Court observed that as the learned Trial Judge wrongly framed the issue and opined that the onus of proof was on the plaintiffs and not on the defendant, the matter should be remitted to the Trial Judge, stating :

"18.In the case in hand, we are of the view that the learned trial court did not frame Issue No. 4 in its true perspective. The onus to prove Issue No. 4 ought to have been put on the respondent who pleaded about the existence of the Will instead of being put on the appellants and that too in negative. We fail to comprehend as to how the appellants shall give proof of the non-existence of the Will. Respondent ought to have brought evidence on Issue No. 4 and of course it was open to the appellants to cross-examine the witnesses of the respondent on this issue to prove that the Will on which the respondent was placing reliance was in fact fictitious and not executed by Smt. Budho Bai. The appellants by no stretch of imagination could lead evidence on this issue. Therefore, it seems to us that this issue was not correctly adjudicated primarily because of the reason that onus to prove this issue was erroneously put on the appellants instead of being put on the respondent who was under legal obligation to prove this issue strictly in terms of