JUDGMENT

Neena Bansal Krishna, J.

I.A. 11402/2023 (u/O XIII Rule 1 of CPC, 1908 by D-2)

I.A. 13406/2023 (u/S 151 of CPC, 1908 by D-2)

1. By way of I.A. 11402/2023, the applicant/defendant No. 2 seeks a direction to the non-applicant/plaintiff to lead his evidence first.

2. By way of I.A. 13406/2023, the applicant/defendant No. 2 seeks the recall of Order dated 10.5.2022 by way of which the applicant was directed to lead his evidence first.

3. Briefly stated, the Late Shri Narain Mohan was the sole and absolute owner of the property bearing No. D-230 Defence Colony, New Delhi (hereinafter referred to as the "suit property"). He had 2 daughters i.e. Late Lilleen Khajuria (represented by her son/plaintiff) and Nishi Mohan (defendant no. 3) and two sons i.e. Sudhir Mohan (defendant no. 1) and Ranbir Mohan (defendant no. 2).

4. The plaintiff has filed the present Suit for Partition, Permanent and Mandatory Injunction and for Possession of 1/4th share in the property bearing No. D-230 Defence Colony, New Delhi (hereinafter referred to as the "suit property") left behind by her maternal grandfather late Shri Shyam Narain Mohan.

5. It is submitted in I.A. 11402/2023 by defendant No.2 that plaintiff in her plaint, has disputed the registered Will dated 03.0.1997 executed by the late Shri Shyam Narain Mohan stating it to have inherent defects and seeks partition on basis of intestate succession.

6. The following reliefs have been sought by way of present Suit which are as under:

"a) A preliminary decree for partition be passed, declaring the shares of the parties in the property No. D230, Defence Colony, New Delhi.

b) A Commissioner be appointed to suggest the modes of partition and in case the property cannot be divided by metes and bounds, "it may be ordered to be sold and the proceeds be divided in terms of preliminary decree.

c) Final decree be passed, putting the Plaintiffs in possession of the property as per their share and all necessary orders in this regard be passed in favour of the Plaintiffs and against the Defendants.

d) Pass a decree for Permanent Injunction against the Defendants from in any manner selling or transferring the property to any outsider, without the consent of all the co-owners.

e) A decree for mandatory injunction be passed against the Defendants Nos. 1 and 4 to produce all documents signed between them inter se or signed with any third party, i.e. Agreement to Sell, etc. relating to the said property, in this Hon'ble Court and on production, the same may be cancelled/destroyed.

ee) A decree for Mandatory Injunction be passed against the Defendants Nos. I and 4 to produce and file in this Hon'ble Court, the alleged Gift Deed dated 8.2.2019 and on production of the same it may be cancelled.

f) Cost of this suit be also awarded to the Plaintiffs.

g) Any other order or direction, which this Hon'ble Court may deem fit and necessary may also be passed in this case."

7. The applicant/defendant No. 2 in his Written Statement took the stand of existence of the registered Will dated 03.09.1997 and further submitted that the property stood mutated in favour of the beneficiaries of the registered Will, almost ten years prior to the filing of the present Suit.

8. In view of the pleadings and the respective stand taken by the parties, the following issues were framed on 10.05.2022:

"(i) Whether the Will dated 03.09.1997 is the last Will of late Sh. Shyam Narain Mohan and is genuine and valid, if so its effect?......OPD 1,2 & 4

(ii) Whether gift deed dated 08.02.2019 executed by defendant No.1 in favour of defendant No.4 is valid and if so its effect?......OPD 4

(iii) Whether the plaintiff are entitled to the decree of partition and mandatory injunction as prayed for?......OPP

(iv) Relief."

9. The defendants were directed to lead their evidence first to prove the existence of the registered Will dated 03.09.1997. The Court vide Order dated 10.05.2022 observed as under:

"6. Since the onus of proof of the Will is on the defendant Nos. 1, 2 4, Def