Parties in a trial must be aware of the real issues involved, rendering claims of prejudice regarding non-framing of issues inadmissible when evidence has been led without confusion.

JUDGMENT :

VIKAS MAHAJAN, J.

1. The question with which this Court is confronted in the present judgment is whether the issues which were framed vide order dated 26.09.2011 covered the amended plaint or whether additional issues need to be framed, which if framed would require leading of additional evidence in respect thereof.

2. To find an answer to the above question, it is necessary to appreciate the background facts of the case.

3. The property bearing number 11, Prithvi Raj Road, New Delhi was owned by Late Sh. R.N. Khosla, who had two sons namely Sh. K.G. Khoslaand Sh. J.C. Khosla. The contesting parties in the present suit for partition are the heirs of Late Sh. K.G. Khosla. The plaintiffs are the three daughters of Late Sh. K.G. Khosla, whereas the Defendant No.1 is his son. When the suit was originally filed, it was filed by the Plaintiff No.1 as the sole plaintiff. Subsequently, the two other daughters of Late Sh. K.G. Khosla, who had been originally arrayed as Defendant Nos.4 and 5, were transposed as Plaintiff Nos.2 and 3 vide order dated 18.04.2006. Defendants No.2 & 3 are the sons of Defendant No.1. The Defendant No.4 (originally Defendant No.6) is the aforesaid Sh. J.C. Khosla.

4. Late Sh. R.N. Khosla during his lifetime executed a Gift Deed dated 19.06.1957. One of the disputes in the present suit revolves around the construction of the said Gift Deed.

5. The case of the plaintiff no.1 in the plaint is that:

(i) By virtue of the said Gift Deed, Sh. R.N. Khosla had gifted half share each of the said property to both of his sons to be held by them for themselves, as well as, for their respective family members.

(ii) The stand was supplemented by a Partition Deed dated 30.05.1972, the recitals of which affirm the factum of the gift having been made for the two sons and their family members as well.

(iii) Challenge has also been made in the plaint to the two Wills, one of Sh. K.G. Khosla and the other of his wife Late Kanwal Khosla, sought to be relied upon by the defendant nos. 1 to 3.

6. The prayer thus, made in the original plaint reads as under:

“i. a preliminary decree for partition of the eastern half ofproperty no.11, Prithvi Raj Road, New Delhi and properties detailed in Schedule A declaring the Plaintiff be the owner of the 1/4^th share.

ii. a final decree for partition and separate possession by division of the aforesaid properties by metes and bounds and/or in the alternative, the same be sold and sale proceedings be divided equally among the Plaintiff and Defendants No.1, 4 and 5;

iii. a decree for declaration in favour of the Plaintiff and against the Defendants declaring that the alleged wills of late K. G. Khosla and late Kanwal Khosla to be null and void and not binding on the Plaintiff;

iv. a decree for permanent injunction restraining the Defendant Nos. 1 to 5, their agents, servants, employees or any other person/s from in any way selling, transferring, alienating or in any manner dealing with the eastern half of property No.11, Prithvi Raj Road, New Delhi and properties detailed in Scheduled A hereto.”

(emphasis supplied)

7. On the other hand, the pleaded case of the defendant nos.1 to 3 in their original written statement is that:

(i) The correct reading of the Gift Deed dated 19.06.1957 would be that Sh. R.N. Khosla gave half share each to both his sons to be held by them absolutely in their individual capacities.

(ii) After having executed the aforesaid Gift Deed, Sh. R.N. Khosla was not left with any right to execute a declaration with regard to the suit property having been gifted in favour of all the family members as cla