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03.01.2024

I.A.19290/2022 (under Order XIV Rule 5 read with Section 151 CPC on

behalf of defendant No.1 and 2 seeking Modification of Issues) and I.A.

16375/2013 (under Order XII Rule 6 CPC on behalf of plaintiffs)

1.

It is submitted in the application I.A. 19290/2022 that the issues were

framed in this case vide Order dated 15.01.2019. Issue No.1, 2 and 3 have

been framed correctly.

2.

Learned Senior Advocate on behalf of the defendants submits that he

does not want any amendments in Issue No.4, though had requested it in the

application.

3.

Learned Sr. Advocate for the defendants submits that Issue No.5

which reads as “Whether plaintiff no. 1 ever conveyed title of any portion of

the suit property in favour of the defendant no.l? If so, when and how?

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.

The Order is downloaded from the DHC Server on 06/01/2024 at 18:12:33

OPD”, be deleted.

4.

Learned counsel for plaintiff submits that Issue No.5 was framed on

the specific plea of defendant No.1 and 2 in the Written Statement, but he

has no objection if the same is deleted.

5.

In view of the submissions made on behalf of learned counsel for

defendant No.1 and 2, the Issue No.5 stands deleted.

6.

In so far as Issue No.6 is concerned, which reads as “Whether the

defence of the defendants no.l and 2 is barred by law by virtue of Section

4(2) of the Prohibition of Benami Transactions Act, 1988? OPD”, it is

agreed by both the parties that the onus be put on the plaintiff.

7.

The issue No.6 now be read as “Whether the defence of the defendants

no.l and 2 is barred by law by virtue of Section 4(2) of the Prohibition of

Benami Transactions Act, 1988? OPP”.

8.

It is agreed by both the counsels that Issue No.7 need not be framed

specifically as it gets covered under Issue No.1. Therefore, Issue No.7 is

also deleted. The issues are reframed as under:

(i)

Whether the plaintiffs are entitled to a decree of

possession against defendants No.l and 2 of the portion

(as shown in Red Colour in the Site Plan) of the Suit

Property? OPP

(ii)

Whether the plaintiffs are entitled to a decree of

recovery of mesne profits against the defendants No.l and

2 jointly or severally? If so, at what rate, and for what

period? OPP

(iii)

Whether the plaintiffs are entitled to a decree of

mandatory injunction in terms of prayer (d) in the plaint?

OPP

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.

The Order is downloaded from the DHC Server on 06/01/2024 at 18:12:33

(iv)

Whether the defendants are co-owners in respect

of the suit property? If so, since when, and in what share?

OPD

(v)

Whether the defence of the defendants no.l and

2 is barred by law by virtue of Section 4(2) of the

Prohibition of Benami Transactions Act, 1988? OPP

(vi)

Whether the plaintiffs are barred from enforcing

their rights against the defendants no.l and 2 in respect of

the suit property by virtue of Section 53A of Transfer of

Property Act, 1882? OPD

(vii)

Relief.

9.

Learned Senior Advocate on behalf of the defendants has further

submitted that since the onus on Issue No.1 is on the plaintiff, the evidence

must be opened by the plaintiff and not by the defendant as was directed

vide Order dated 04.11.2022.

10.

In terms of Order XVIII Rule 1 CPC which states that the evidence

shall be commenced by the plaintiff to prove his case unless the case of the

plaintiff admitted by the defendants in which case the evidence be led by the

defendants, it is argued that since onus of proving Issue Noi.1 is on the

plaintiff and it is he who should open the evidence.

11.

Learned counsel on behalf of the plaintiff has opposed the contentions

raised on behalf of the defendants by asserting that the ownership of the

plaintiffs and the possession of defendant No.1 in the suit property also

admitted