Mr. Raj Mohan Singh, J.:- CM No.18310-C of 2016

After hearing learned counsel for both the parties, the application is allowed. Accompanying documents are allowed to be placed on record.

Main case

1. Petitioners have assailed order dated 18.05.2015 (Annexure P-6) passed by Civil Judge (Jr. Divn.), Hisar whereby application of taking off affidavit of Jagat Pal moved by defendant was allowed and the plaintiffs were restrained from examining PW Jagat Pal in the rebuttal evidence.

2. Brief facts of the case are that the plaintiff/petitioners filed a suit for pre-emption of agricultural land situated in the revenue estate of village Dhobhi, Sub-Tehsil Balsamand, Distt. Hisar on the ground of tenancy.

3. Trial Court passed order dated 16.05.2012 framing the following issues:-

“1. Whether the plaintiffs have been cultivating the land in suit as tenants on the date of sale and continues as such? OPP

2. Whether the plaintiffs have a superior right of Pre-emption? OPP

3. Whether the sale price of Rs.19,50,000/- was actually paid and fixed in good faith? OPD

4. If issue No.3 is not proved what is the market value of the suit land on the date of sale? Onus on the parties.

5. Whether the suit is not maintainable in the present form? OPD

6. Whether the plaintiff have relinquished their rights of tenancy in favour of defendants, if so to what effect? OPD

7. Whether Ram Kumar cultivated the land in suit as a tenant, if so to what effect? OPD (Ram Kumar defendant).

8. Whether the suit is bad on account of nonjoinder of necessary parties. OPD

9. Relief.”

4. Issue No.1 was to the effect that whether the plaintiffs have been cultivating the land in suit as tenant on the date of sale and were continuing as such thereafter. The onus to prove issue No.1 was on the plaintiff. Issue No.6 was framed on the stand of the defendant that the plaintiffs had already relinquished their rights of tenancy in favour of the defendant. Onus of this issue was on the defendant.

5. Plaintiffs filed an application to produce witnesses in their rebuttal. It was also prayed that besides two witnesses, other witnesses, if any, will be produced by the plaintiff. Diet money was also deposited in respect of two named persons. On 02.02.2015 affidavit of Jagat Pal was tendered in examinationin- chief by the plaintiff/petitioners in their rebuttal evidence. In the affidavit, Jagat Pal deposed in para Nos.1 and 2 in the following manner:-

“1. That I know Krishan Kumar son of Sh. Sheo Nath of village Kharia, Tehsil and Distt. Hisar. He moved an application to S.S.P. Hisar. This application was assigned to P.P. Balsamand and was enquired into by Daya Ram Head Constable, P.P. Balsamand. A compromise was got effected between the parties. The land in suit is being cultivated by Phool Singh and Om Parkash and after later’s death Naresh for the last about 50 years and the parties at that time agreed that no one will interfere in their possession till the suit is finally decided by the court. The compromise/application bears the signatures of the deponent alongwith other person who were present there. Krishan Kumar and Naresh were also present there and their statement was also recorded by the Head Constable Daya Ram in the presence of the deponent and other witnesses.

2. That the land in question is in continuous possession and cultivation of Phool Singh and Naresh at the spot.”

6. On 27.04.2015, defendant filed an application for taking off the affidavit of Jagat Pal from the file on the ground that he cannot be examined as a witness of the plaintiffs to show the alleged cultivating possession of Phool Singh and Naresh at the spot. Defendant alleged that onus of an issue in respect of alleged cultivating possession was upon the plaintiffs, who had already closed their evidence, therefore, Jagat Pal cannot be examined in rebuttal in respect of an issue the onus of which was on the plaintiffs.

7. The said application was contested by the plaintiffs. Trial Court allowed the appl