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2009 DIGILAW 746 (RAJ)

Nekram v. Siyaram

2009-03-13

G.K.TIWARI

body2009
JUDGMENT TIWARI, M.—This is a revision petition under Section 230 of the Rajasthan Tenancy Act, 1955 (in short `the Act') against the judgment dated 5.1.04 of Assistant Collector (Headquarter) Dholpur by which he allowed the application filed under Order 8 Rule 6(C) of the Civil Procedure Code (C.P.C.) with exclusion of counter claim put up in the written statement by the petitioner-defendant. 2. The facts, in brief, leading to the revision are that the non-petitioners-plaintiffs No. 1 to 7 filed a suit under Section 88 and 188 of the Act in which the petitioner Nekram was also impleaded as plaintiff. Subsequently some dispute cropped up among the plaintiffs whereupon Nekram was transposed from plaintiff to defendant in the suit by the trial Court on the request of the rest of the plaintiffs-non-petitioners. Thereafter the petitioner Nekram having become defendant in the suit filed written statement along with the counter-claim on 1.7.03. In response to the counter-claim filed by the petitioner-defendant, plaintiffs-non-petitioners filed an application under Order 8 Rule 6(C) of the C.P.C. for the exclusion of the counter-claim from the written statement. This application was allowed by the Assistant Collector (Headquarter) Dholpur by the impugned order dated 5.1.04; aggrieved against which this revision is filed. 3. I have heard the learned counsel of the rival parties in this regard. 4. The learned counsel for the petitioner has pleaded that the disputed land initially belonged to the deceased khatedar tenant Brahma who was brother of the plaintiffs Siyaram, Jagram and defendant Nekram. Siyaram, the plaintiff has wrongly claimed a will allegedly executed by Brahma in favour of two sons of Siyaram. Initially Nekram was made plaintiff in the suit under consideration. But due to dispute relating to execution of will and division of holding. Nekram-petitioner was made defendant on the request of the plaintiffs by the Court order dated 19.5.03. Thereafter an opportunity was given to plaintiffs to file the amended plaint and the defendant to file written statement in pursuant to which Nekram filed written statement along with his counter-claim. But trial Court wrongly accepted the application of the plaintiffs-non-petitioners filed under Order 8 Rule 6(c) of the C.P.C. for exclusion of the counter-claim by the impugned order which is wrong and illegal. When the petitioner has been transposed as defendant his right to put up defence by way of filing written statement and counter-claim cannot be denied to him. But trial Court wrongly accepted the application of the plaintiffs-non-petitioners filed under Order 8 Rule 6(c) of the C.P.C. for exclusion of the counter-claim by the impugned order which is wrong and illegal. When the petitioner has been transposed as defendant his right to put up defence by way of filing written statement and counter-claim cannot be denied to him. The petitioner is one of the co-tenants of the disputed land and as such he has right to claim declaration and division of the disputed land being a co-tenant; at the same time he has right to deny any kind of alleged will supposedly made in favour of sons of Siyaram-plaintiff. The counter-claim in respect of the disputed land is non such that a separate suit should be filed for same; in fact counter-claim is meant to cut short litigation, not to multiply it. As such the impugned order of trial Court is illegal and should be set aside. 5. Opposing the contentions of the petitioner, the learned counsel for the non-petitioners has submitted that the plaintiffs have not sought any relief against the defendant Nekram. Initially the petitioner Nekram was a plaintiff and in his capacity as a plaintiff he had filed a plaint along with other plaintiffs acknowledging the will made by deceased Brahma in favour of two sons of Siyaram. Now he is estopped from making any deviation from the averment already made by him and he cannot deny the will. So there is nothing illegal in the impugned order of trial Court which should be upheld. 6. I have given thoughtful consideration to the rival contentions, perused the impugned order dated 5.1.04 of trial Court and gone through the record available on the file. 7. Admittedly the disputed land is in co-tenancy of the rival parties. This is also admitted that the petitioner Nekram was initially impleaded as plaintiff and later on transposed as defendant on the request of rest of the plaintiffs by the order of trial Court dated 19.3.03. Thereafter plaintiffs were allowed to file amended plaint and defendant was allowed to file written statement, in pursuance of which plaintiffs filed amended plaint and defendant Nekram filed written statement along with his counter-claim. Thereafter plaintiffs were allowed to file amended plaint and defendant was allowed to file written statement, in pursuance of which plaintiffs filed amended plaint and defendant Nekram filed written statement along with his counter-claim. Piqued by the counter-claim of the petitioner-defendant, the plaintiffs filed an application under Order 8 Rule 6(c) of the C.P.C. for exclusion of the counter-claim which was allowed by the trial Court by the impugned order dated 5.1.04 and the counter-claim was excluded. The ground given by trial Court for exclusion of the counter-claim is that in the earlier plaint submitted by the plaintiffs when petitioner-defendant Nekram was also one of the plaintiffs. Nekram had acknowledged the will executed by Brahma; so now he cannot be allowed to deny the same will in keeping with principle of estopple. This ground of the trial Court for exclusion of one of the counter-claims is not justified in view of the fact that the trial Court had ordered for submission of amended plaint and written statement after transposing Nekram from plaintiff to defendant. So amended plaint was put up accordingly by the plaintiffs. Now Nekram was not plaintiff but defendant as such he had right to put up written statement and counter-claim. A perusal of the written statement and counter-claim submitted by the petitioner-defendant Nekram shows that he has denied the alleged will made by Brahma and staked claim in the disputed land for declaration of his right and division of the holdings as a co-tenant. The trial Court has not written a word about his claim for declaration of his right and division of the disputed land as one of the co-tenants. Without dwelling upon this part of the counter-claim, outright exclusion of the counter-claim by the trial Court is untenable. As far as claim relating to the purported will is concerned, perusal of the issues framed shows that issue No. 8 framed by the trial Court pertains to `will'. Since an issue on will has already been framed the averment of denial by the defendant Nekram in respect of the will is already subsumed in the issue No. 8 framed in this regard. So rival parties including Nekram defendant have to be provided opportunity to prove or refute issue No. 8 so framed. Since an issue on will has already been framed the averment of denial by the defendant Nekram in respect of the will is already subsumed in the issue No. 8 framed in this regard. So rival parties including Nekram defendant have to be provided opportunity to prove or refute issue No. 8 so framed. Other paras of counter claim as staked by the defendant Nekram pertain to declaration of his khatedari right as a co-tenant and request for partition of the land. A perusal of the Order 8 Rule 6(c) of the C.P.C. makes it abundantly clear that counter-claim can be excluded only when an independent suit is required to dispose of the dispute and the same cannot be decided in the suit under consideations; but such is not the case under consideration. The suit is with regard to declaration of khatedari rights and injunction. The defendant Nekram is also claiming the same relief along with division of his share as a co-tenant. For this there is no need to file a separate and independent suit when a dispute relating to declaration and injunction as well as division of holding can be disposed of in the same suit under consideration. In fact a revenue suit can simultaneously provide relief of declaration, partition and injunction among the rival parties specifically when they happen to be co-tenants. It would not be out of place to mention here that when the trial Court has transposed the petitioner from plaintiff to defendant, not on his request but on the request of rest of the plaintiffs, the defendant (Nekram) cannot be deprived of his right to submit written statement and counter-claim and get the dispute relating to declaration, injunction and partition of the suit land adjudicated upon finally by the trial Court. 8. In view of the foregoing discussion, the impugned order suffers from infirmity and cannot be countenanced. The trial Court has committed illegality and material irregularity in excluding the counter-claim of the petitioner-defendant from his written statement; as such the impugned order deserves to be set aside. 9. Resultantly, the revision is allowed and the impugned order dated 5.1.2004 of Assistant Collector (Headquarter) Dholpur is set aside. Pronounced.