Punjab-Haryana High Court
Pooja Rani vs Devender Singh & Ors on 12 November, 2013
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Civil Revision No. 5655 of 2012
DATE OF DECISION : November 12, 2013
POOJA RANI
.......PETITIONER
VERSUS
DEVENDER SINGH & ORS.
.... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE S. P. BANGARH
...
Present: Mr.Sanjiv Gupta, Advocate, for the petitioner.
Mr. D.R. Bansal, Advocate, for respondents Nos.1 to 3.
S. P. BANGARH, J.
Petitioner, herein, and respondents Nos.4 to 6 filed a suit for declaration to the effect that they are owners and occupiers of land mentioned in paras 3(a) and 3(b) of the plaint and mutation No.7931 is null and void, and further a decree for declaration to the effect that the Release Deed dated 1.6.2007 does not confer any right, title or interest upon respondents/defendants Nos.2 and 3 and the same is not binding upon the petitioners. It has also been claimed that the petitioners and respondents Nos.4 to 6 are owners and occupiers of one half share in the land mentioned in paras 3(c) and 3(d) of the plaint. Decree for permanent injunction has also been sought to restrain respondents No.1 to 3 from alienating or creating any third party interest by way of sale, mortgage, lease or in any other manner Kang Gursharan Singh 2013.11.20 11:04 I am the author of this document Chandigarh Civil Revision No. 5655 of 2012 2 in the land mentioned in para-3 of the plaint. It was also averred that if the trial Court found that the Will dated 5.2.2004 is not a valid document, then, the petitioners are entitled to one half share in the suit land, mentioned in para-3 of the plaint, being the subject matter of Release Deed dated 1.6.2007.
Respondents Nos.1 to 3 filed written statement controverting, therein, the averments contained in the plaint.
On the basis of pleadings of the parties, following issues were framed in the suit by the trial Court on 10.6.2010 :-
1. Whether the plaintiff is entitled to a decree for declaration as prayed for ? OPP
2. Whether the suit is not maintainable in the present form ? OPD
3. Whether the plaintiff has suppressed the true and material facts from the court ? OPD
4. Whether the plaintiff has no cause of action to file the present suit ? OPD
5. Whether the plaintiff has not come to the court with clean hands, if so, what effect ? OPD
6. Whether the suit of the plaintiff is barred by limitation ? OPD
7. Relief.
Later on, on the basis of pleadings of the parties, following issues were framed in the suit by the trial Court on 14.10.2010 :-
1. Whether the plaintiffs are entitled to a decree for declaration as prayed for ? OPP
2. Whether the suit is not maintainable in the present form ? OPD
3. Whether the plaintiffs have no cause of action to file the present suit ? OPD Kang Gursharan Singh 2013.11.20 11:04 I am the author of this document Chandigarh Civil Revision No. 5655 of 2012 3
4. Whether the plaintiffs have not come to the court with clean hands if so what effect ? OPD
5. Whether the suit of the plaintiffs is barred by limitation ? OPD
6. Whether the plaintiffs have suppressed the true and material facts from the court ? OPD
7. Relief.
Thereafter, the petitioner and respondents Nos.4 to 6 filed an application for framing additional issues to the following effect :-
1. Whether Surjit Singh alias Sarjit Singh son of Ram Singh executed any Will dated 5.2.2004 in favour of plaintiffs ? OPP
2. Whether Kalawati widow of Ram Singh executed any Will dated 2.12.2005 in favour of defendant Nos.1 and 2 ? OPD It was averred in the application that in the suit, the petitioner and respondents Nos.4 to 6 have challenged the Release Deed dated 1.6.2007 and have also set up Will dated 5.2.2004 executed by Surjit Singh alias Sarjit Singh.
Respondents Nos.1 to 3, who are defendants Nos.1 to 3 before the trial Court, filed their written statement and they have also set up a Will dated 2.12.2005, allegedly executed by Smt. Kalawati. The onus to prove the Will is always upon the propounder of the Will, but no issues either with regard to Will dated 5.2.2004 set up by the petitioner and respondents Nos.4 to 6 or with regard to Will dated 2.12.2005 set up by respondents/defendants Nos. 1 to 3, have been framed. It was averred in the application that non-framing of the issues will have material effect on the merits of the case. Consequently, Kang Gursharan Singh 2013.11.20 11:04 I am the author of this document Chandigarh Civil Revision No. 5655 of 2012 4 prayer was made that the issues (supra) may be framed and, obviously, added in the issues already framed in the suit.
This application was opposed by respondents/ defendants Nos. 1 to 3 by averring that parties have led evidence on the factum of Wills and non-framing of issues is not at all fatal as the parties have led evidence alive of the fact that the respective Wills are to be proved by the respective parties. Consequently, prayer for dismissal of the application was, thus, made.
The trial Court, after hearing both the sides, dismissed the application vide impugned order dated 17.8.2012 (Annexure P-5).
Aggrieved against the order (supra), the petitioner (plaintiff No.1 before the trial Court) has come up in this revision with a prayer for acceptance, thereof, and for acceptance of his application that has been moved by the petitioner and respondents Nos.4 to 6 for framing of additional issues.
Learned counsel for the petitioner contended that the latter does not want to lead any further evidence and the additional issues need to be framed, so that the parties remain aware that the burden of an issue is on that party. He further contended that in the present case, the propounder of the Will has to prove the due execution, thereof, and, as such, the right of the petitioner and respondents Nos.4 to 6 cannot be scuttled without taking into consideration the mandate of law. He also contended that no prejudice shall accrue to the parties and even the proceedings will not be delayed. It was also contended that, Kang Gursharan Singh 2013.11.20 11:04 I am the author of this document Chandigarh Civil Revision No. 5655 of 2012 5 in any case, the present suit has been filed by the petitioner and respondents Nos.4 to 6, who shall suffer an irreparable loss, in case, the application for framing additional issues is not allowed.
On the other hand, learned counsel for respondents Nos.1 to 3 contended that the trial Court rightly dismissed the application vide the impugned order that may be upheld and affirmed.
Learned counsel for the petitioner placed reliance upon judgment of this Court in N.K. Bhatia v. Maharawal Khewaji Religious and Charitable Trust, 2006(2) RCR (Civil) 348, wherein it has been held that no legal infirmity can be said to be committed by the Court, if the left over issue is framed on the basis of plea already taken in the written statement. It was also held that the burden of proof lies on the party claiming the issue and on whose pleadings, the issue is framed. It has further been held that it is well settled that a fact is required to be proved by that person who desires any Court to give judgment, as to any legal right or liability dependent on the existence of facts which he has asserted.
There is no gainsaying that the proposed issues have arisen out of the pleadings of the parties. When once it is true that the proposed issues arise out of the pleadings of the parties, these were required to be framed by the trial Court, especially when it is the case of the petitioner (plaintiff No.1 before the trial Court) that she will not lead any further evidence. The trial Court, thus, gravely fell in error by dismissing the application of the petitioner and respondents Kang Gursharan Singh 2013.11.20 11:04 I am the author of this document Chandigarh Civil Revision No. 5655 of 2012 6 Nos.4 to 6 for framing additional issues. The impugned order, thus, suffers from material infirmity and illegality that must be set aside and the application moved by the petitioner and respondents Nos.4 to 6 must be allowed.
Resultantly, the revision petition succeeds and is, hereby, allowed with no order as to costs; the impugned order (Annexure P-3) is set aside; the application filed by the petitioner and respondents Nos.4 to 6 for framing additional issues, is allowed, and the trial Court is directed to frame the following issues :-
1. Whether Surjit Singh alias Sarjit Singh son of Ram Singh executed any Will dated 5.2.2004 in favour of plaintiffs ? OPP
2. Whether Kalawati widow of Ram Singh executed any Will dated 2.12.2005 in favour of defendant Nos.1 and 2 ? OPD The aforesaid issues shall be read in addition to the issues already framed and findings, thereon, by the trial Court shall be given on the basis of evidence led by the parties. As already noticed, opportunity to the petitioner and respondents Nos.4 to 6 need not be granted to lead further evidence.
November 12, 2013 ( S. P. BANGARH )
Kang JUDGE
Kang Gursharan Singh
2013.11.20 11:04
I am the author of this
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Chandigarh