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TMI Blog1987 (1) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... e following issues Nos. 2 to 5 have been framed : " (2) Whether the first defendant's adoption to late B. Guruvulu is true, valid and binding? (3) Whether the adoption of late B. Appa Rao to late B. Guruvulu is true, valid and binding? (4) Whether the will dated March 18, 1976, is true, valid and binding? (5) Whether the will dated February 16, 1962, is true, valid and binding? " Before the commencement of the trial, the defendants filed I. A. No. 7 of 1985 under Order 14, rule 5, Civil Procedure Code, seeking amendment of issues. The amendment sought for is to introduce the word" not " in all the issues Nos. 2 to 5 so as to cast the burden of proof on the plaintiff. The learned Subordinate judge, by taking into consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of Rs. 12,62,921 including penalties for the two assessment years 1971-72 and 1972-73. When the Income-tax Department proceeded to attach the property, claim petition has been filed to lift the attachment to the extent of 5/6ths share. It was found by the Tax Recovery Officer that the first and the second defendants are entitled to 1/6th share each and the third defendant is entitled to half share and the Tax Recovery Officer confirmed the attachment to the extent of only 1/6th share. Now, the crucial point that has to be determined is whether in a case where a claim petition is filed and allowed by the Tax Recovery Officer under rule 11(6) of Part I of Schedule 11 to the Income-tax Act, 1961, the burden of proof completely rests on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establish the right which has been negatived by the order on the claim petition and is in substance, to set it aside. The order passed on the claim petition is subject to the result of the suit filed by the successful party under Order 21, rule 63, Civil Procedure Code. In the present case, when the claimant claiming possession on the basis of adoptions and the wills disputes the attachment, the scope of the suit under rule 11(6) is not only to determine whether the wills and the adoptions are correct but also to establish that the property belongs to the persons who claim it. The plaintiff has to prove that he has got a right to attach the property for the purposes of selling the right, title and interest of the judgment-debtor. We cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one. It is confined to the question of possession only. But a suit under Order 21, rule 63 is concerned not only with the question of possession but also with the question of title. In other words, the scope of the suit is different from and wider than that of an investigation under Order 21, rule 58. In fact, the order made in an investigation under Order 21, rule 58, constitutes the cause of action for a suit under Order 2l, rule 63." In Ganpati Ram Bhande v. Baliram Ragunath Jadhav, AIR 1974 Bom 155, it has been observed as follows with regard to the procedure of investigation under Order 21, rule 58, Civil Procedure Code (at page 160): " It requires to be emphasised that the direction of the investigation which the court has to c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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