Judgment

Mrs. Archana Puri, J.

Through the present petition under Article 227 of the Constitution of India, the petitioner has invoked the jurisdiction of this Court to challenge the order dated 10.05.2018 (Annexure P-6) passed by learned Court below, in Civil Suit No.379 dated 18.10.2012, whereby, an application under Section 65 of the Indian EVIDENCE ACT , filed by the respondents has been allowed.

2. The facts, as culled out from the paper-book are that respondents No.1 to 4/plaintiffs had filed a suit for seeking declaration along with defendants No.1 (petitioner) and No.3, to be joint owners in joint possession of the land, as detailed in the head note of the plaint, copy whereof is Annexure P-1. Besides the same, another declaration was sought, thereby, challenging the legality and validity of the sale deed dated 24.05.2012, executed by petitioner (defendant No.1 before the lower Court), being the attorney of Lashkar Singh, in favour of defendant No.2 (his wife), who is respondent No.5 and also sought, relief of joint possession.

3. Issues were framed in the present case and the evidence of both the petitioner (defendant No.1) as well as respondents No.1 to 4 (plaintiffs) was recorded. When the case was at the stage of rebuttal evidence, an application was filed by the respondents-plaintiffs under Section 65 of the Indian EVIDENCE ACT , for allowing them to produce Will dated 31.01.1997, duly executed by Lashkar Singh, in favour of his sons-Sohan Singh (plaintiff No.1) and Jasmel Singh (defendant No.1), by way of secondary evidence. The said application was allowed vide impugned order dated 10.05.2018.

4. In this backdrop, the question, which is involved is whether respondents-plaintiffs could adduce evidence, by way of secondary evidence, qua the Will, which, as such, does not form the subject matter of the suit in hand.

5. Before proceeding further, it should be noted that respondents-plaintiffs had sought declaration, vis-a-vis, validity and legality of the sale deed, allegedly executed by the petitioner-defendant No.1, being attorney of Lashkar Singh. Copy of the plaint is coming on record. Perusal of the same reveals that the Will now intended to be produced, nowhere to be asserted/denied and as such, has no relevance to the lis. Perusal of the plaint reveals that it is affirmative case of the respondents-plaintiffs that Lashkar Singh neither appointed petitioner-defendant No.1 as his attorney nor received alleged consideration of the alleged sale deed dated 24.05.2012, which is now under challenge. Furthermore, in the plaint, it has also been asserted that Lashkar Singh was not on speaking terms with the petitioner as well as his wife and that petitioner-defendant No.1 and Lashkar Singh were involved in litigation with each other and therefore, question of appointing petitioner-defendant No.1 as attorney, by Lashkar Singh, during his life-time does not arise.

6. Such being the assertion, the contesting respondents-plaintiffs were clear about the legality and validity of the Will, having been challenged by them. Such being the position, it was required on the part of the respondents-plaintiffs to lead evidence, relating to this cropped controversy, at the stage, when they were to lead evidence in affirmative. However, respondents-plaintiffs did not lead any evidence. However, as evident, on 08.09.2015, counsel for the plaintiffs had given the statement, which reads as follows:-

“I close my affirmative evidence after tendering copy of power of attorney Ex.P-9 (Objected to)”

Copy of the said statement is annexed as Annexure P-3.

8. Though the que