A plaintiff cannot lead evidence in rebuttal to prove facts required to be established in affirmative.

JUDGMENT

Rekha Mittal, J. - The present petition directs challenge against order dated 27.9.2016 (Annexure P-7) passed by the Civil Judge (Junior Division), Batala, whereby application filed by the petitioner/defendant No. 1 for striking off para Nos. 1 to 9, 13, 14, 18 to 22 of the affidavit of Paramjit Kaur plaintiff in rebuttal and de-exhibiting the documents mentioned in abovesaid paras has been dismissed.

2. Counsel for the petitioner has submitted that Kashmir Kaur widow (since deceased) and three daughters of late Sh. Tara Singh filed the suit for declaration that plaintiffs are the co-sharers/owners in possession to the extent of %rd share i.e. %th share each in the land in question which they have inherited after death of Tara Singh son of Harnam Singh resident of village Dalam Nangal Tehsil Batala, against Nazar Singh and Major Singh sons of Tara Singh. The plaintiffs claimed their right in the suit property on the plea that suit property is joint Hindu family coparcenary property in the hands of Tara Singh, therefore, the plaintiffs have %th share each in the land whereas the remaining %th share each is co-owned by the defendants, sons of Tara Singh. The plaintiffs further averred that the alleged Will purported to be executed by Tara Singh in favour of defendants is illegal, ultra vires, null and void, inoperative, forged and fabricated document etc. as there was no occasion for the deceased to disinherit the plaintiffs. Tara Singh was not competent to execute any Will of the joint Hindu family ancestral property which he had inherited from his forefathers. Plaintiffs No. 2 to 4 have got right, title and interest in the suit land since their birth. Plaintiff No. 1 was looking after and serving Tara Singh during his life time and there was no occasion for the deceased to disinherit plaintiff No. 1. The defendants have got mutation of inheritance of Tara Singh sanctioned in their favour and the same is illegal, null and void and must be the result of collusion and conspiracy of the defendants with revenue authorities.

3. It is further argued that the trial court framed the issues reproduced in para 3 of the grounds of revision and onus of issue with regard to entitlement of the plaintiffs to relief of declaration has been placed upon them whereas the onus of issue qua validity of Will dated 23.11.1994 has been cast upon the defendants/propounders of the Will. The plaintiffs opened the case for leading evidence in order to discharge the onus of issues qua declaration and injunction and they tendered into evidence certain documents. Thereafter, the defendants adduced their evidence to counter plea of the plaintiffs that the suit land is the joint Hindu family coparcenary property or plaintiffs No. 2 to 4 being coparceners in the said land and further to prove Will dated 23.11.1994 having been executed by Tara Singh in favour of his sons. One of the plaintiffs Paramjit Kaur daughter of deceased Tara Singh tendered into evidence her affidavit (Annexure P-4) in rebuttal and in the said affidavit, Paramjit Kaur has testified in respect of various facts which were required to be proved by the plaintiffs in their affirmative evidence. It is argued with vehemence that para Nos. 1 to 9, 13, 14 and 18 to 22 of the affidavit of Paramjit Kaur pertain to the facts that could be proved by the plaintiffs in affirmative, therefore, the aforesaid paras are liable to be deleted so that no prejudice is caused to the petitioner. The plaintiffs can not be permitted to lead affirmative evidence in the guise of leading rebuttal evidence qua the Will. In support of his contention, he has referred to judgment of this Court Hanumant Singh vs. Babu Singh and others 2010(2) Civil Court Cases 311. Further reference has been made to judgment of Hon'ble the Supreme Court of India R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple and others 2003(4) RCR (Civil) 704. Reference has also been made to another judgment of this Court Jasjit