The burden of proof lies on the party asserting a fact, and the High Court's power under Article 227 is limited to ensuring that subordinate courts and tribunals exercise their powers within the bounds of their authority.

1. Through the medium of this petition, filed under Section 104 of the Constitution of Jammu & Kashmir, the petitioner-plaintiff is seeking setting aside of order dated 03.08.2013 passed by the learned Sub-Judge Katra in the application filed by him in a suit, titled as Shankar Dass v. Shivu, bearing File No.09-A/Civil misc., whereby the learned trial Court dismissed the said application seeking striking off issues No.5 & 6 framed in the plaint.

2. The facts essential for the disposal of this petition are that the plaintiff, petitioner herein, has filed a Civil Original Suit before the learned trial court seeking declaration to the effect that he is owner-in-possession of one-half of the entire land of his father, Chuha and uncle Kirpu falling in Khasra Nos.97, 98 and 99, situate at Kundarorian, Tehsil and District Reasi. The basis of his claim is that his father Chuha and uncle Kirpu were two real brothers.

Petitioners-plaintiff, respondent-defendant and one Teju were the sons of Chuha, whereas their uncle Kirpu died with no male issue. Teju, brother of petitioner-plaintiff and respondent-defendant also died issueless. Thus, it is claimed that both petitioner-plaintiff and respondent-defendant being the real brothers are the only legal heirs of their father Chuha and uncle Kirpu. So through the medium of civil original suit filed before the trial court, petitioner-plaintiff is seeking a declaration to the effect that he is the owner of one half of the entire land of his father and uncle Kirpu.

3. Learned trial court vide order dated 30.04.2013 framed a total of nine issues, issues 5 & 6 are to the following effect:

"5. Whether the suit land in Khasra nos. 97, 98 and 99 at Kundrorian devolved upon the parties in equal shares ? OPP

6. Whether the defendant is adopted son of Sh. Kirpu? If so, what is its effect to the present suit? OPP"

4. Petitioner-plaintiff being of the view that issues 5 & 6 have wrongly been framed, filed an application before the trial court for striking off the same. Petitioner-plaintiff pleaded that issues. No. 5 has negatively been framed, as the onus thereof ought to have been on respondent-defendant. He further pleaded that issue No. 6 is an unnecessary issue as the respondent-defendant has already denied that he was not adopted by Kirpu.

5. After considering the pleadings and arguments put forth by the learned counsel appearing for the parties, the learned trial court dismissed the application vide order dated 03.08.2013, impugned herein. Feeling aggrieved the petitioner-plaintiff has filed the instant petition.

6. It is contended that issue No. 5 has wrongly been framed and issue No. 6 does not arise from the pleadings of the parties. Learned counsel for petitioner-plaintiff argued that it is the admitted case of the parties that they are the real brothers from a common ancestry and that in view of admission on the part of respondent-defendant that he was not adopted by his uncle Kirpu, both plaintiff as well as defendant are entitled to half of the suit property.

7. Petitioner-plaintiff has stated in paragraph-2 of the plaint that in both cases-whether the defendant was adopted by his uncle Kirpu or not, the plaintiff as well as defendant both would be entitled to half of the suit property. If the defendant was adopted by his uncle Kirpu, then the defendant has no right in the property of his natural father and he has to leave the same. And, if the defendant's claim of adoption is not upheld, even then the position would remain the same, as both plaintiff and defendant would be equally entitled to the properties of their father Chuha and uncle Kirpu, who died issueless, therefore, it was pleaded that the learned trial Court has erred in holding that "still the route required to be taken to reach the said decision is as important as the decision". Learned counsel for petitioner-plaintiff thus argued that what is stated in paragraph-2 of the plaint is only a suggestion and not an assertion of fact, issue No.

Click Here to Read the rest of this document