ORDER : By way of instant petition, petitioners have assailed order dated 09.05.2022, passed by learned Senior Civil Judge, Court No. 1, Amb, District Una, H.P. in CMA No. 183-VI-2022, filed in Civil Suit No. 72-1 of 2015, whereby, the prayer made by the petitioners was partially rejected. 2. Brief facts necessary for adjudication of the petition are that Civil Suit No. 72-1 of 2015 filed by the petitioners against respondent is pending adjudication before the learned Senior Civil Judge, Court No. 1, Amb, District Una, H.P. The suit was initially filed by Mr. Rakesh Babu, Predecessor-in-interest of petitioners, who died during its pendency. The original plaintiff Sh. Rakesh Babu and respondent herein/defendant were sons of late Sh. Ram Roop. The subject matter of the suit is the estate left behind by Sh. Ram Roop. Whereas, Sh. Rakesh Babu claimed to have inherited the estate of Sh. Ram Roop alongwith defendant in equal shares and on such premise sought declaration as to joint ownership and possession with defendant over the properties left behind by Sh. Ram Roop, defendant has propounded a Will of Sh. Ram Roop in his favour and has claimed inheritance to the properties left behind by Sh. Ram Roop in accordance with Will. Plaintiffs have also assailed the Will propounded by defendant to be the result of fraud, misrepresentation and undue influence. 3. Defendant has also filed a counter claim against the plaintiffs seeking declaration that the land comprised in Khasra No.1715 measuring 00-28-99 hects, situated in Village Amb Khas, Tehsil Amb, District Una, H.P. has fallen to the share of defendant/counter claimant under the Will dated 08.09.2010 executed by late Sh. Ram Roop and the revenue entries depicting the ownership and possession of plaintiffs over the said land are wrong, illegal and void. In addition, a money decree of Rs.16,72,301/- has also been prayed for by the counter claimant. 4. Learned Trial Court framed following issued on 26.02.2019:- “1. Whether the plaintiff is entitled for decree of declaration to the effect that parties are joint owner in possession of the suit land? OPP 2. Whether the plaintiff is entitled for decree of declaration to the effect that impugned Will dated 8.9.2010 is outcome of fraud, misrepresentation and undue influence, as alleged? OPP 3. Whether the plaintiff is entitled for decree of declaration to the effect that parties are joint owner in possession of the suit land? OPP 2. Whether the plaintiff is entitled for decree of declaration to the effect that impugned Will dated 8.9.2010 is outcome of fraud, misrepresentation and undue influence, as alleged? OPP 3. Whether the Will is further required to be declared null and void and it was executed without possession sound disposition of mind since 2009 due to Parkinson diseases as alleged? OPP 4. Whether the plaintiff has suppressed true and material facts from this court, as alleged? OPD 5. Whether the plaintiff has no locus-standi to file the present suit? OPD 6. Whether the suit is liable to be dismissed on the ground of maintainability, as alleged? OPD 7. Whether the plaintiff is estopped by his act and conduct to file the present suit, as alleged? OPD 8. Whether the impugned Will dated 8.9.2010 is duly executed in due process of law, as alleged? OPD. COUNTER-CLAIM 9. Whether the counter claimant/defendant is entitled decree of declaration on the basis of registered Will dated 8.9.2010, as alleged? OPD/CC 10. Whether the counter claimant/defendant is entitled for money decree of Rs.16,72,301/- on the basis of Will dated 8.9.2010, as alleged? OPD/CC 11. Whether the counter claim is liable to be dismissed on the ground of maintainability? OPP/Non-CC 12. Whether the counter claimant has no cause of action, as alleged/OPP/Non-CC 13. Whether the counter claim is time barred, as alleged, OPP/Non-CC 14. Whether the counter claimant has suppressed material facts from the court, as alleged? OPP/Non-CC 15. Whether the counter claim is not properly valued as alleged? OPP/Non-CC 16. Whether the counter claimant has no locus standi, as alleged? OPP/Non-CC 17. Whether this court has no jurisdiction, as alleged? OPP? Non-CC 18 Relief.” 5. Subsequent to framing of issues, plaintiffs filed an application before learned Trial Court under Order 14 Rules 1 and 5 read with Section 151 of Code of Civil Procedure with prayers as under:- “(a) Issues No. 3 and 10 as framed on 26.02.2019 may be ordered to be struck off, being superfluous. OPP? Non-CC 18 Relief.” 5. Subsequent to framing of issues, plaintiffs filed an application before learned Trial Court under Order 14 Rules 1 and 5 read with Section 151 of Code of Civil Procedure with prayers as under:- “(a) Issues No. 3 and 10 as framed on 26.02.2019 may be ordered to be struck off, being superfluous. (b) Issue No. 2 as framed on 26.02.2019 may be ordered to be recast/re-framed/amended as under:- Issue No.2: If Issue No.8 is proved in affirmative, whether plaintiff is entitled for a decree of declaration to the effect that the impugned Will dated 8.9.2010 is an outcome of fraud, misrepresentation and undue influence as alleged? OPP. (c) Issue No.9 as framed on 26.2.2019 may also be ordered to be recast/reframed/amended as under: - Issue No.9: If findings under Issue No.8 are in affirmative, whether the counter claimant-defendant is entitled for a decree of declaration on the basis of Will dated 8.9.2010, as alleged and is also entitled for a decree for a sum of Rs.16,72,301/-, as alleged? OPD-Counter Claimant. (d) Additional issues may be ordered to be framed as under:- (i) Whether plaintiff is entitled for a decree for permanent prohibitory injunction, as alleged? OPP (ii) Whether Mutations No. 901,1299 and1015 attested on the basis of alleged Will dated 8.9.2010 are liable to be declared null and void, having no effect on the rights, title and interest of the plaintiff, as alleged? OPP (e) Any other order that this learned Court deems fit in the facts and circumstances of the case may also be passed in favour of plaintiff-applicant in the interest of justice.” 6. Vide impugned order, learned Trial Court partially allowed the application of plaintiffs. Issue No. 3 framed in the suit was ordered to be struck off being covered under issue No.2. Additional issues as issues No. 3 and 3(a) were also ordered to be framed as follows:- “(3) Whether Mutation No. 901, 1299 and 1015 attested on the basis of alleged Will dated 8.9.2010 are liable to be declared null and void, having no effect on the rights, title and interest of the plaintiff, as alleged? OPP. (3-A) Whether the plaintiff is entitled for a decree for permanent prohibitory injunction, as alleged? OPP” Remaining prayers made by the plaintiffs were rejected. 7. Thus, the prayers to strike off issue No. 10 and to reframe issue Nos. OPP. (3-A) Whether the plaintiff is entitled for a decree for permanent prohibitory injunction, as alleged? OPP” Remaining prayers made by the plaintiffs were rejected. 7. Thus, the prayers to strike off issue No. 10 and to reframe issue Nos. 2 and 9 were rejected. Learned Trial Court rejected the aforesaid prayers by holding that such allowance will violate the provisions of Order 18 Rule 1 of the Code of Civil Procedure, according to which, it is the plaintiff who has to begin the evidence. It has further been held that since the allegations regarding Will of late Sh. Ram Roop being result of fraud, misrepresentation and undue influence were not admitted by defendant, the reframing of issues No. 2 and 9 would amount to calling upon the defendant to lead evidence in first instance. Learned Trial Court also inferred that the plaintiffs had made a prayer that issue No. 8 be directed to be proved by defendant prior to proving of issue No. 2 by plaintiffs. 8. I have heard learned counsel for the parties and gone through the record. 9. At the very outset, this Court is constrained to observe that learned Trial Court has misapplied the provisions of Order 18 Rule 1 of Code of Civil Procedure, while considering the questions posed before it. The procedure prescribed in Rule 1 of Order 18 of CPC has no direct relation with the framing of issues in a suit, the onus to prove such issues and burden to prove the same. Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The material propositions are those propositions of law or fact which plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. Issues can be of fact and of law or a mixed issue of fact and law. 10. It is enjoined upon the Court to ascertain upon what material proposition of fact or of law, the parties are at variance and accordingly to frame and record the issues on which the right decision of the case appears to depend. 11. Issues can be of fact and of law or a mixed issue of fact and law. 10. It is enjoined upon the Court to ascertain upon what material proposition of fact or of law, the parties are at variance and accordingly to frame and record the issues on which the right decision of the case appears to depend. 11. Once the issues are framed, the onus to prove the issues is also fixed on the basis of rules of evidence provided under Chapter-VII of the Indian Evidence Act, 1872. The burden to prove a particular fact, as a general rule, lies on the person who asserts such facts. The onus to prove an issue lies upon the person for whom it becomes incumbent to prove the facts constituting the issue. The burden to prove a fact never shifts, whereas the onus to prove an issue keeps on shifting. 12. Order 18 of the CPC merely provides procedure for examination of witnesses. Rule 1 of Order 18 provides a right to the plaintiffs to begin the hearing of the suit unless the claim is admitted by defendant, in which case, the defendant has right to begin. Under Rule 2 of Order 18, the party having right to begin is obliged to state his case and produce his evidence in support of the issues which he is bound to prove. From the reading of aforesaid provision of Code of Civil Procedure, it cannot be implied that it affects the burden to prove a particular fact that lies on the party in accordance with the provisions of Chapter-VII of the Indian Evidence Act, 1872. Section 102 of the Evidence Act prescribes that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Thus, the preference to lead evidence does not affect the burden of proof. 13. Adverting to the facts of the case, the dispute primarily revolves around the rights of inheritance of the parties to the property of their predecessor-in-interest. Defendant has propounded a Will. Law provides specific mode for attestation of Will under section 63 of the Indian Succession Act. The Will is mandatorily required to be attested by at least two witnesses. 13. Adverting to the facts of the case, the dispute primarily revolves around the rights of inheritance of the parties to the property of their predecessor-in-interest. Defendant has propounded a Will. Law provides specific mode for attestation of Will under section 63 of the Indian Succession Act. The Will is mandatorily required to be attested by at least two witnesses. For using the Will as evidence, it is mandatorily required under Section 68 of the Indian Evidence Act that at least one attesting witness is called upon for purpose of proving its execution. On the basis of Section 102 of the Indian Evidence Act, it is settled proposition of law that the propounder of Will has to prove its attestation in accordance with law so as to make it worthy of use as evidence. The burden to prove due execution of Will is always on the propounder. Such burden does not shift. In such view of the matter, even if the plaintiffs in the instant case begin the evidence, the burden to prove issue No. 8 will remain on defendant. In case defendant succeeds in discharging the burden, it will be for the plaintiffs to prove their allegations regarding Will being result of fraud, misrepresentation and undue influence. 14. Further, learned Trial Court has also not noticed the provision of Rule 3 of Order 18 of CPC, according to which, in case where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case. This provision normally provides an option to the plaintiffs to lead evidence on the issues, the burden of proving which lies on the defendant, or reserve it by way of answer to the evidence produced by the defendant. This process goes on and that is why it is said that onus keeps on shifting but burden does not. 15. This provision normally provides an option to the plaintiffs to lead evidence on the issues, the burden of proving which lies on the defendant, or reserve it by way of answer to the evidence produced by the defendant. This process goes on and that is why it is said that onus keeps on shifting but burden does not. 15. At this stage, the exposition made by a Coordinate Bench of this Court in case Neelam Rai Vs. Surjit Kumar and others, AIR 2011 H.P. 39 , on Rule 3 of Order 18 of CPC, can be gainfully referred, which is as under:- “15. It would be pertinent to deal with the phrase relied upon by the respondent that the “party beginning will be entitled to reply generally on the whole case.” In case Order 18, Rule 3 of the CPC is read as a whole, it is obvious that when several issues are framed normally it would be the plaintiff who would lead evidence if onus to prove certain factual issues has been placed on the plaintiff. Therefore, instead of the word ‘party beginning’ I am reading in this sub rule the word ‘plaintiff’ and instead of the word ‘other party’, the word ‘defendant’. Therefore, where there are several issues, onus to prove some of which is on the plaintiffs and of some on the defendants and the plaintiff leads evidence only on the issues, the onus to prove which is on him, then he can reserve his right to lead rebuttal evidence on the issues, onus to prove which is on the defendant. Thereafter, the defendant would be required to lead evidence on all issues and then the plaintiff would have the right to lead evidence in rebuttal only on those issues, the onus to prove which was on the defendant. This is obvious from the words used in this rule that in the latter case the party beginning may produce evidence on those issues after the other party has produced its own evidence. It is only when the defendant is again given a right to lead evidence either by way of additional evidence or otherwise, i.e., in case of a counter claim to lead further evidence that the plaintiff would get a right to lead rebuttal evidence again and it is only in this eventuality that the plaintiff can reply generally on the whole case.” 16. Plaintiffs had prayed for reframing/recasting of issues No. 2 and 9, as noticed above, which did not make any difference either on the onus to prove such issues or the burden to prove the facts necessary for proving the issues. Reframing of aforesaid issues, thus, will not change the consequences to lead evidence as provided by Rules 1 and 2 of Order 18 of Code of Civil Procedure. 17. In view of above discussion, the petition is allowed. Order dated 09.05.2022, passed by learned Senior Civil Judge, Court No. 1, Amb, District Una, H.P. in CMA No. 183-VI-2022, filed in Civil Suit No. 72-1 of 2015 to the extent it rejected the prayer for amendment of issues No. 2 and 9 is set aside and application of the petitioner herein/plaintiffs under Order 14 Rule 1 and 5 read with Section 151 of Code of Civil Procedure to above extent is also ordered to be allowed. 18. Accordingly, the petition is disposed of, so also the pending miscellaneous application(s), if any.