ORDER

Learned counsel for respondent No.1 submits that respondent No.2- Shanti Sharma has already expired and her name has already been deleted from the cause title of the suit by order dated 23.03.2021.

2. At this stage, learned counsel appearing on behalf of petitioner prays for deletion of name of respondent No.2 from the cause title of present petition. 3. Prayer is allowed. 4. Necessary correction be made during the course of the day.

5. By the present petition, petitioner has challenged the order dated 07.02.2024 passed in RCSA No. 79/2019 by Second Civil Judge, Senior Division District-Umariya, whereby the application moved by petitioner under 14 Rule 5 of CPC was dismissed.

6. The short facts of the case are that the petitioner filed a suit for declaration and injunction against the defendants claiming that Late Shri Mukutdhari Sharma and Smt. Shanti Sharma adopted the petitioner during the lifetime of Shri Mukutdhari and, therefore, the petitioner is adopted daughter of the spouse. Respondent/Defendant No.1 Smt. Shanti Sharma sold the subjected property through registered sale deed to respondent/defendant No.1 Jitendra Kumar Tiwari and the sale deed is challenged by petitioner in the suit on the various grounds.

7. After filing of written statement on behalf of respondent No.1, learned trial Court framed the issues and trial was started. Thereafter, application under Order 14 Rule 5 of CPC was moved on 06.01.2024 on behalf of petitioner/plaintiff with the prayer to frame two additional issues on the basis of pleadings of the parties.

8. The application is opposed by respondent/defendant and trial Court vide order dated 07.02.2024 dismissed the application by holding that the issues already framed are sufficient for disposal of the suit and covers the proposed issues also.

9. Heard learned counsel for the parties and perused the record.

10. It appears that plaintiff has filed the present suit claiming the status of adopted daughter of Late Shri Mukutdhari Sharma and Smt. Shanti Sharma and, therefore, until and unless issue is framed to the extent of aforesaid disputed fact, just decision of the case is not possible.

11. Plaintiff is challenged the execution of sale deed by Smt. Shanti Sharma in favour of respondent No.1 and the locus of the plaintiff to challenge the sale deed is solely dependent upon the story of adoption. The issues already framed by trial Court are not sufficient to decide the status of the plaintiff and no issue is framed in respect of adoption of the plaintiff by Late Shri Mukutdhari Sharma and Smt. Shanti Sharma.

12. Learned counsel for respondent submits that the plaintiff evidence is already over and the case is at the stage of defendant evidence and at this stage plaintiff has moved the application with malafide intention to delay the trial. It appears that the proposed issues are required for just decision of the case.

13. Issues should be framed on the basis of pleadings of the parties and in the plaint, there is a specific pleading of the plaintiff that the plaintiff was adopted by Late Shri Mukutdhari Sharma and Smt. Shanti Sharma and the plaintiff is the adopted daughter of them and the said fact has denied by defendant No.1 therefore, issue in respect of question of adoption of plaintiff was ought to have been framed which has not been framed by learned trial Court and consequently, second issue which is in respect of joint ownership of property being adopted daughter of Late Shri Mukutdhari Sharma is also required to be framed, but the same has also not been framed.

14. In the present matter, the entire contention and challenge of the plaintiff to sale deed executed in favour of defendant No.1 is based on the issue of adoption therefore, in view of the pleadings of the parties, the present petition is allowed subject to payment of cost of Rs.5000/- to defendant No.1 by the petitioner/plaintiff. Consequently, impugned order dated 07.02.2024 is hereby set aside.

15. Learned Trial Court