IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (124)

CR-6368-2024 Date of decision: - 30.01.2025 Mohan Singh (since deceased) through his LR ....Petitioner Versus Gurdeep Singh and others .....Respondents CORAM : HON'BLE MR. JUSTICE VIKAS BAHL Present:- Mr. Inderpal Singh Parmar, Advocate, for the petitioner.

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VIKAS BAHL, J. (ORAL)

1. Present civil revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 13.09.2024 passed by the Civil Judge (Junior Division), Ludhiana, in CS/3136/2017, whereby the application dated 12.08.2024 (Annexure P-8) filed by the petitioner/defendant No.1 for discarding the affidavit dated 05.08.2024 (Annexure P-7) filed by plaintiff/respondent No.1 in his rebuttal evidence has been declined.

2. Learner counsel for the petitioner has submitted that the Will dated 29.06.2000 was in the knowledge of respondent No.1/plaintiff as he had filed a suit for declaration to the effect that the said Will was forged and fabricated and thus, the respondent No.1/plaintiff should have led the evidence in affirmative and should not have been permitted to lead evidence in rebuttal. It is submitted that in view of the same, the affidavit of respondent No.1/plaintiff, which has been placed on record in rebuttal evidence, was required to be discarded and the application filed by the petitioner for discarding the same was required to be allowed and the impugned order is thus required to be set aside.

3. This Court has heard learned counsel for the petitioner and has perused the paper-book and finds that the impugned order has been rightly passed and the present revision petition being meritless, deserves to be dismissed for the reasons detailed hereinafter.

4. It is not in dispute that the present petitioner/defendant No.1 is claiming his right on the basis of the Will dated 29.06.2000, which is stated to have been executed by Randhir Singh in his favour. It is also not in dispute that on 23.07.2019, the following issues were framed: -

1. Whether plaintiff is entitled for decree of declaration as prayed for?

OPP

2. Whether plaintiff is entitled for decree of permanent injunction as prayed for?OPP

3. Whether plaintiff is entitled for decree of separate possession by way of partition as prayed for?OPP

4. Whether plaintiff is entitled for decree of rendition of account as prayed for?OPD

5. Whether suit of the plaintiff is not maintainable?OPD

6. Whether plaintiff has no locus standi to file the present suit?OPD

7. Whether plaintiff is estopped from his own act and conduct from filing the present suit?OPD

8. Whether plaintiff has no cause of action to file the present suit?OPD 9. Whether suit of the plaintiff is barred under order 2 rule 2 CP? OPD

10. Relief.”

5. On 10.05.2023, additional issue No.4(a) was framed, which is as under:-

“Whether Randhir Singh has executed Will dated 29.06.2000 in favour of defendant no.1?OPD”

6. A perusal of the abovesaid issues, more so, additional issue No.4(a) would show that the onus of proving the Will dated 29.06.2000 is on the defendant No.1 and it is the case of the petitioner/defendant No.1 that thereafter he had led his evidence. Once the onus of proving the said Will was on the defendant No.1/petitioner, the plaintiff/respondent No.1 had every right to lead his rebuttal evidence to rebut the evidence led by the petitioner/defendant No.1. Thus, the affidavit produced by the plaintiff/respondent No.1 in rebuttal has been rightly produced and no ground is made out to discard the same.

7. The trial Court while dismissing the said application vide order dated 13.09.2024 had referred to the judgment of this Court in the case of “Smt. Kanwaljit Kaur Bedi Vs Paramajit Singh Sawhney and others”, (2020)(1) R.C.R. (Civil) 521 (P&H), the relevant portion of which was reproduced in the impugned order and wherein it was observed that even in case the factum of Will was in the knowledge of the plaintiff from the very beginning, still the plaintiff was no