O R D E R
This Civil Revision Petition has been preferred challenging the order of the learned XIV Assistant Judge, City Civil Court at Chennai dated 16.09.2021 in I.A.No.1 of 2019 in O.S.No.1462 of 2011.
2. The revision petitioner is the plaintiff who filed the suit against the defendants for the reliefs of declaration and cancellation of the Sale Deed dated 25.06.2008 and permanent injunction in respect of the suit property. After the defendants made their appearance and filed written statement, the learned Trial Judge has framed nine issues which are extracted under Paragraph No.4 of the impugned order which is as follows:
"1.Whether the plaintiff entitled to get declaration with regard to the superstructure along with leasehold right in the land measured in suit scheduled property as prayed for.
2.Whether the plaintiff is entitled to get declaration with regard to the sale deed dated 25.07.2008 doc no.2032/2008 as null and void as prayed for.
3.Whether the plaintiff is entitled to get permanent injunction against the defendant as prayed for.
4.Whether the counter claim is barred by limitation.
5.Whether the counter claim is barred on the statutory notice under Section 106 of TP Act.
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6.Whether the defendant/counter claim is a bonafide purchaser for value without notice of the right of the plaintiff in the suit property. 7.Whether the counter claim is barred u/S/34 of Specific Relief Act as the counter claimant did not pray for declaration with regard to title. 8.Whether the second defendant/counter claimant legal heirs are entitled to get recovery of possession as prayed for.
9.To what other relief?"
3. Not being satisfied with the issues already framed in the suit, the plaintiffs has filed a petition to frame additional issues which are as under:
"1.Whether the plaintiff discharged the mortgaged loan by the deceased first defendant and her husband.
2.Whether the deceased first defendant has got right to sell the entire property and the sale deed is null and void.
3.Whether the deceased second defendant has paid the sum of Rs.3,00,000/- as per the recitals of the sale deed.
4.Whether the plaintiff is in continuous possession of the entire property and hence, entitled for permanent injunction.
5.Since the deceased 2nd defendant did not issue any notice or file any suit from the date of sale deed till his death whether the defendants 3 to 6 are estopped from prosecuting the counter claim for recovery of possession filed by the deceased 2nd defendant.
6.Whether the counter claim for recovery of possession of part of the suit property without any prayer for damages for use and occupation is
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maintainable. 7.Whether the counter claimant is in possession of the portion of the suit property and the valuation of the counter claim is correct and proper."
4. It is settled principle of law that at the time of settling the issues it is the discretion of the Court to call for draft issues and settle the issues. The Court has got the discretion to frame additional issues also at any point of the proceeding. In this case, the Court has already framed nine issues. The facts which now needed to be dealt was also inclusive of the issues already framed. So, further additional issues sought to be framed are only superfluous. The learned Trial Judge has already framed comprehensive issues which itself can answer all the matters in dispute.
5. The plaintiff being a party who has filed the suit, has the burden upon him to prove that he is entitled to the reliefs sought for. In the name of filing leave to frame additional issues, no party can take advantage of shifting the burden of proof on the other side and the Courts will not yield to such tactics. The learned Trial Judge has rightly dealt the issues and chosen to dismiss the petition, which in my opinion, does not suffer from any infirmity.
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6. In the result, this Civil Revision Petition is dismissed and the order in I.A.No.1 of 2019 in O.S.No.1462 of 2021, dated 16.09.2021 passed by the XIV Assistant City Civil Judge, Chennai, is hereby confirmed. No costs. Consequently, the connected miscellaneous petition stands closed.
05.08.2022
Index:Yes/No Internet:Yes/No ssi
To
1.The XIV Assistant City Civil Judge, Chennai.
R.N.MANJULA,J.,
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ssi and C.M.P.No.193 of 2022
05.08.2022
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