Mr. Rajesh Bindal, J.: - One of the defendants is before this Court impugning the order dated 28.9.2013 (Annexure P-6), passed by the learned Court below vide which the counter-claim filed by defendant no. 3, namely, Ompal son of Madan Lal in the suit filed by Kashmiri Lal son of Om Parkash, was held to be maintainable.

2. Learned counsel for the petitioner submitted that the suit was filed by Kashmiri Lal seeking declaration to the effect that Will dated 20.9.2003 executed by Smt. Sona Devi is forged and fabricated and so the probate obtained on the basis thereof. The same is not binding on the plaintiff- Kashmiri Lal and defendant nos. 4 to 6, namely Sham Lal, Pawan Kumar and Ram Dhan sons of Om Parkash. Sona Devi was grand mother of the petitioner, whereas she was maternal grand-mother of the plaintiff and defendant nos. 4 to 6. Probate had been issued in favour of the petitioner on the basis of Will. The claim in the suit filed by Kashmiri Lal was on the basis of two collusive decrees dated 27.9.1991 and 10.2.1992 passed in favour of plaintiff therein and defendant nos. 4 to 6.

3. In the suit filed by Kashmiri Lal, defendant no. 3 Ompal while filing written statement, filed counter-claim praying that the alleged Will dated 20.9.2003 and probate issued on the basis thereof be declared illegal, null and void. There was no relief claimed against the plaintiff in the suit namely Kashmiri Lal. It was further submitted that Ompal and Naresh both sons of Madan Lal even filed a separate suit against the petitioner Som Pal and Balak Ram son of Bichha Ram claiming the same relief as was prayed for in the counter-claim, inter-alia on the plea that they are in possession of the property as Dholidar.

4. Learned counsel for the petitioner further submitted that the counter-claim filed by a co-defendant supporting the case of the plaintiff, seeking a relief against the co-defendant only, is not maintainable. In support of the plea, reliance was placed upon judgments of Hon’ble the Supreme Court in Ramesh Chand Ardawatiya vs Anil Panjwani 2003(2) R.C.R. (Civil) 828, Rohit Singh and others vs State of Bihar (Now State of Jharkhand) and others 2007(1) Civil Court Cases 155 and Bombay High Court in Communidade of Pirla vs Government of Goa and others 2011(1) Civil Court Cases 228.

5. Learned counsel for respondent nos. 1 and 4 to 6 submitted that there is nothing wrong with the impugned order. The same is legally sustainable.

6. Learned counsel for respondent no. 3 also argued in the same line. He further stated that the counter-claim was filed by respondent no. 3 while filing written statement, which was objected to by the plaintiff and his objections to the same were dismissed by the learned Court below and the counter-claim was admitted. Thereafter, the parties were given chance to lead evidence. The case is still pending.

7. Heard learned counsel for the parties and perused the paper book.

8. In the case in hand, Kashmiri Lal filed a suit challenging the Will dated 20.9.2003, executed by Smt. Sona Devi in favour of Sompal (defendant no. 1) and also the probate issued on the basis thereof in his favour. It was prayed that the Will or the probate is not binding on the rights of the plaintiff and defendant nos. 4 to 6 in the suit, namely, Kashmiri Lal and Sham Lal, Pawan Kumar and Ram Dhan sons of Om Parkash. Challenge to the Will in the suit was made relying upon two consent decrees allegedly executed by Smt. Sona Devi in favour of the plaintiff and defendant nos.4 to 6. It was submitted that she had transferred her land by way of decree dated 27.9.1991 passed in Civil Suit No. 448/1991 by the Sub-Judge 1st Class, Karnal and decree dated 10.2.1992 passed in Civil Suit No. 473/1991 passed by Senior Sub-Judge, Kaithal in favour of plaintiff and defendant nos. 4 to 6, namely, Kashmiri Lal and Sham Lal, Pawan Kumar and Ram Dhan sons of Om Parkash. In the suit Sompal son of Mange Ram and Balak Ram son of Bichha Ram have been impleaded a