TIWARI, M.—This is a revision petition under Section 230 of the Rajasthan Tenancy Act, 1955 (in short `the Act') against the judgment dated 5.1.04 of Assistant Collector (Headquarter) Dholpur by which he allowed the application filed under Order 8 Rule 6(C) of the Civil Procedure Code (C.P.C.) with exclusion of counter claim put up in the written statement by the petitioner-defendant.

2. The facts, in brief, leading to the revision are that the non-petitioners-plaintiffs No. 1 to 7 filed a suit under Section 88 and 188 of the Act in which the petitioner Nekram was also impleaded as plaintiff. Subsequently some dispute cropped up among the plaintiffs whereupon Nekram was transposed from plaintiff to defendant in the suit by the trial Court on the request of the rest of the plaintiffs-non-petitioners. Thereafter the petitioner Nekram having become defendant in the suit filed written statement along with the counter-claim on 1.7.03. In response to the counter-claim filed by the petitioner-defendant, plaintiffs-non-petitioners filed an application under Order 8 Rule 6(C) of the C.P.C. for the exclusion of the counter-claim from the written statement. This application was allowed by the Assistant Collector (Headquarter) Dholpur by the impugned order dated 5.1.04; aggrieved against which this revision is filed.

3. I have heard the learned counsel of the rival parties in this regard.

4. The learned counsel for the petitioner has pleaded that the disputed land initially belonged to the deceased khatedar tenant Brahma who was brother of the plaintiffs Siyaram, Jagram and defendant Nekram. Siyaram, the plaintiff has wrongly claimed a will allegedly executed by Brahma in favour of two sons of Siyaram. Initially Nekram was made plaintiff in the suit under consideration. But due to dispute relating to execution of will and division of holding. Nekram-petitioner was made defendant on the request of the plaintiffs by the Court order dated 19.5.03. Thereafter an opportunity was given to plaintiffs to file the amended plaint and the defendant to file written statement in pursuant to which Nekram filed written statement along with his counter-claim. But trial Court wrongly accepted the application of the plaintiffs-non-petitioners filed under Order 8 Rule 6(c) of the C.P.C. for exclusion of the counter-claim by the impugned order which is wrong and illegal. When the petitioner has been transposed as defendant his right to put up defence by way of filing written statement and counter-claim cannot be denied to him. The petitioner is one of the co-tenants of the disputed land and as such he has right to claim declaration and division of the disputed land being a co-tenant; at the same time he has right to deny any kind of alleged will supposedly made in favour of sons of Siyaram-plaintiff. The counter-claim in respect of the disputed land is non such that a separate suit should be filed for same; in fact counter-claim is meant to cut short litigation, not to multiply it. As such the impugned order of trial Court is illegal and should be set aside.

5. Opposing the contentions of the petitioner, the learned counsel for the non-petitioners has submitted that the plaintiffs have not sought any relief against the defendant Nekram. Initially the petitioner Nekram was a plaintiff and in his capacity as a plaintiff he had filed a plaint along with other plaintiffs acknowledging the will made by deceased Brahma in favour of two sons of Siyaram. Now he is estopped from making any deviation from the averment already made by him and he cannot deny the will. So there is nothing illegal in the impugned order of trial Court which should be upheld.

6. I have given thoughtful consideration to the rival contentions, perused the impugned order dated 5.1.04 of trial Court and gone through the record available on the file.

7. Admittedly the disputed land is in co-tenancy of the rival parties. This is also admitted that the petitioner Nekram was initially impleaded a