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2010 DIGILAW 2610 (PNJ)

Mohan Pal Singh v. Karampal Singh

2010-09-10

RAKESH KUMAR JAIN

body2010
Judgment Rakesh Kumar Jain, J. 1. The short point involved in this revision petition is as to "whether plaintiffs can be allowed to lead evidence in rebuttal on an issue in which the onus of proof is on them". 2. In order to unfold the controversy between the parties, a few facts are necessary to be noticed. The present revision petition has been filed by the defendants. Plaintiffs Kishan Pal Singh and Karampal Singh sons of Kartar Singh filed the present suit for joint possession of 1/2 share of land measuring 151 Kanals 05 Marlas and 1/2 share of land measuring 26 Kanals 17 Marlas, situated in the area of Muktsar-III, Tehsil Muktsar. In the suit, it is, inter alia, alleged that the plaintiffs along with their brothers Harpal Singh, Gurlal Singh and Gurpal Singh were the owners of land measuring 245 Kanals 07 Marlas in the revenue estate of Goneana out of which an area of 206 Kanals 04 Marlas was surrendered by them in favour of the Central Government vide mutation No. 1282. In lieu whereof, they were allotted land measuring 182 Kanals 02 Marlas in the revenue estate of Garden Colony, Muktsar. It is alleged that the land should have been allotted in the name of all the owners, namely, Harpal Singh, Gurlal Singh, Gurpal Singh, Karampal Singh and Kishan Pal Singh, but it was allotted in the name of Harpal Singh. After the consolidation, land measuring 151 Kanals 05 Marlas and 26 Kanals 17 Marlas was allotted in the revenue estate of Muktsar to Harpal Singh. Harpal Singh has expired and he is succeeded by defendant Nos. 1 to 3, who are his widow, son and daughter. It was further alleged that Harpal Singh, Gurpal Singh and Gurlal Singh were the owners to the extent of 1/5 share of the suit land. The share of Gurpal Singh out of the suit land was satisfied in a family settlement and he and his sons were given 1/2 share of land out of 76 Kanals 18 Marlas situated in the area of Muktsar-III. Thus, the share of Gurpal Singh out of the suit land stood eliminated. Gurlal Singh filed a suit and got his 1/4 share out of the suit land and, thus, the suit land remained the ownership of the plaintiffs to the extent of 1/2 share. Thus, the share of Gurpal Singh out of the suit land stood eliminated. Gurlal Singh filed a suit and got his 1/4 share out of the suit land and, thus, the suit land remained the ownership of the plaintiffs to the extent of 1/2 share. In order to make it more clear, it was mentioned that the share of Gurpal Singh was satisfied by the family settlement whereby he and his sons got 1/2 share of land measuring 76 Kanals 18 Marlas out of the common land of the parties and after eliminating the share of Gurpal Singh, the property came under the ownership of four brothers, namely, Kishan Pal Singh, Karampal Singh, Harpal Singh and Gurlal Singh. Since Gurlal Singh got his share by filing a Civil Suit, therefore, the plaintiffs and Harpal Singh had the remaining share in the suit land, but Harpal Singh retained three shares instead of one share and on that count the suit was filed to claim 1/2 share of the suit land. 3. The suit was contested by filing written statement in which it was, inter alia, alleged that the property in question was allotted by the Rehabilitation Department vide Sanad No. F-4/54/57 in August, 1956. Plot No. 57 was in the name of Harpal Singh. The said allotment became final and is not amenable to challenge in view the the bar provided under Section 27 of the Displaced Persons (C&R) Act, 1954. The plaintiffs were compensated for the land exchanged from village Goneana and two plots bearing No. D-33 and D-32 were got purchased in the name of Karampal Singh and Kishan Pal Singh in the Maharani Bagh Cooperative House Building Society, New Delhi for which the amount was paid by Col. Harpal Singh, father of defendants Nos. 2 and 3, from his own personal funds and in lieu thereof Karampal Singh gave his affidavit dated 11.09.1971 and Kishan Pal Singh gave his affidavit dated 11.08.1972 to the effect that they have already partitioned their land in family settlement by mutual agreement. The plaintiffs filed replication in which they admitted the execution of aforesaid affidavits. On the pleadings of the parties, issues were framed by the learned Trial Court on 24.11.2001, which are reproduced as under :- "1. The plaintiffs filed replication in which they admitted the execution of aforesaid affidavits. On the pleadings of the parties, issues were framed by the learned Trial Court on 24.11.2001, which are reproduced as under :- "1. Whether plaintiffs are entitled for joint possession of 1/2 share of suit property, as detailed and described in the head note of this suit ? OPP. 2. Whether the suit is within limitation ? OPP. 3. Whether plaintiffs are estopped from filing the present suit by their act and conduct ? OPD. 4. Whether defendant No. 1 is owner in possession of suit land on the basis of decree dated 14.12.1971 passed in Civil Suit No. 795 dated 15/16.11.1971 titled as Mohinder Kaur Versus Col. Harpal Singh ? OPD. 5. Whether this court has jurisdiction to entertain and decide the present suit ? OPD. 6. Relief." 4. The plaintiffs led their evidence in affirmative and at the time when their evidence was closed, following order was passed by the Court :- "I tender in evidence copy of jamabandi for the year 1995-96 fo Muktsar Ex. P1, copy of jamabandi 1995-96 Ex. P2, copy of mutation No. 1282 Ex. P3, Allotment Order Ex. P4, jamabandi 1968-69 of Village Goneana (15 pages) Ex. P5, Khatoni Istemal Muktsar (3 pages) Ex. P6, jamabandi Istemal 1968-69 (5 pages) Ex. P7, Khatoni Paimaish of Village Goneana Ex. P8 (4 pages), Naksha Hakdarwar of Village Goneana Ex. P9, Khatoni Istemal Village Goneana Ex. P10, mutation No. 1282 Ex. P12, jamabandi 1975-76 Muktsar (7 pages) Ex. P12, jamabandi 1980-81 Muktsar (2 pages), Ex. P13, jamabandi 1995- 96 Muktsar Ex. P14, Jamabandi 1968-69 Muktsar Ex. P15, Khatoni Istemal Muktsar (2 pages) Ex. P16, Naksha Hakdarwar (2 pages) Ex. P17, Chak Bandi Khatoni Istemal Muktsar (6 pages) Ex. P18, Mutation Azadinama Ex. P19, certified copy of Inspection report (5 pages) Ex. P20, certified copy of affidavit Ex. P21, certified copy of application Ex. P22, copy of allotment order Ex. P23, certified copy of report of allotment Ex. P24, death certificate Ex. P25 (documents objected to) and close the evidence." 5. The defendants moved an application for examining one witness, namely, J.N.Gupta, on commission due to his old age. The said application was dismissed by the learned Civil Judge, Muktsar vide order dated 12.06.2009. P22, copy of allotment order Ex. P23, certified copy of report of allotment Ex. P24, death certificate Ex. P25 (documents objected to) and close the evidence." 5. The defendants moved an application for examining one witness, namely, J.N.Gupta, on commission due to his old age. The said application was dismissed by the learned Civil Judge, Muktsar vide order dated 12.06.2009. The defendants challenged the order dated 12.06.2009 by filing C.R. No. 3705 of 2009 titled as "Mohan Pal & another v. Kishan Pal Singh and another". The said revision petition was allowed by this Court on 07.10.2009 and Local Commissioner was appointed for the examination of DW J.N.Gupta and it was directed that the defendants shall lead their remaining evidence on 07.11.2009 and one more date to be fixed by the Trial Court for that purpose. As there was no direction in the order dated 07.11.2009 to the Trial Court to hand over the record of the present suit to the Local Commissioner, accordingly, CM No. 24445-CII of 2009 was filed by the defendants which was allowed by this Court on 21.10.2009 and the date of evidence was also changed to 31.10.2009. Statement of DW J.N.Gupta was recorded by the Local Commissioner on 31.10.2009 at New Delhi and statements of the remaining witnesses were also recorded on 07.11.2009 and 14.12.2009. On 14.12.2009, statement of Mohan Pal Singh was recorded and he was partly cross-examined by the plaintiffs. His cross- examination was deferred to 15.01.2010. As the defendant No. 1 in his statement had referred to two affidavits dated 11.09.1971 and 11.08.1972 executed by Karampal Singh and Kishan Pal Singh respectively and recognized their signatures but those affidavits were not exhibited as the originals thereof were not available, therefore, on 14.12.2009, the defendants filed an application for permission to lead secondary evidence to prove the said affidavits. The said application, however, was dismissed by the Trial Court on 17.12.2009, which led to the filing of C.R. No. 75 of 2010 and the same was allowed on 16.02.2010 by which the defendants were granted an opportunity by this Court to lead secondary evidence subject to payment of costs. During the pendency of C.R. No. 75 of 2010, case was fixed before the Trial Court on 08.02.2010 for rebuttal and arguments and was adjourned to 11.02.2010. During the pendency of C.R. No. 75 of 2010, case was fixed before the Trial Court on 08.02.2010 for rebuttal and arguments and was adjourned to 11.02.2010. On 11.02.2010, in the absence of counsel for the defendants, the plaintiffs produced one PW Navdeep Gupta in rebuttal evidence. As soon as the defendants counsel came to know about the examination of PW Navdeep Gupta in rebuttal, he moved an application not to allow the plaintiffs to lead evidence in rebuttal which has been dismissed by the Trial Court vide its impugned order dated 25.05.2010 on the pretext that if the evidence led by the plaintiffs will be allowed and if it is not covered then the same may not be considered at the time of final arguments. 6. The defendants have challenged the impugned order basically on two grounds; i) that after the issues were framed on 24.11.2001, the plaintiffs have availed of 23 opportunities in a span of 6 years to complete their evidence which was closed vide order dated 02.11.2007 in which no right was reserved to lead rebuttal evidence; and, ii) the plaintiffs have sought to lead evidence in rebuttal on issue No. 1 which was to be proved by the plaintiffs themselves. Elaborating his argument, learned counsel for the petitioners has submitted that if the plaintiffs have not reserved their right of leading evidence in rebuttal, then the same cannot be allowed to be exercised. In this regard, he has relied upon decisions of this Court in the case of Chakkar Pani v. Onkar Nath, 1996(3) P.L.R. 342 and in the case of Smt. Jaswant Kaur and another v. Devinder Singh and others, 1983(2) R.C.R.(Rent) 57 : 1983 AIR (Punjab) 210 (DB). In respect of the second point that the plaintiffs cannot be allowed to lead evidence in rebuttal to prove an issue which was burdened upon them, he has relied upon a Division Bench judgment of this Court in the case of Surjit Singh and others v. Jagtar Singh and other, 2007(1) R.C.R. (Civil) 537 and a Single Bench judgment of this Court in the case of Sarwan Singh v. Gram Panchayat Village Srhal Mundi, 2009(3) P.L.R. 489. 7. On the other hand, learned counsel for the respondents has vehemently argued that need to examine Navdeep Gupta as a witness arose when the defendants had examined J.N.Gupta as a witness. 7. On the other hand, learned counsel for the respondents has vehemently argued that need to examine Navdeep Gupta as a witness arose when the defendants had examined J.N.Gupta as a witness. However, she could not cite any judgment to the contrary that the plaintiffs can be allowed, by the Court, to lead evidence in rebuttal on the issue which is to be proved by the plaintiffs themselves. 8. I have heard both learned counsel for the parties and perused the record with their able assistance. 9. The point in question, which has been framed by me in the beginning of the judgment, has already been answered by this Court in the case of Surjit Singh and others (supra) after taking into consideration various judgments and it has been held that "in our opinion, Order 18 Rule 3 of the CPC would not give a right to the plaintiff to lead evidence in rebuttal on issues in which the onus of proof is on the plaintiff. Accepting such an interpretation would be to ignore a vital part of Order 18 Rule 3 of the CPC. The rule clearly postulates that "the party beginning, may, at his option, either produce his evidence on these issues or reserve it by way of answer to the evidence produced by the other parties". No matter, how liberally a provision in the statute is required to be interpreted, by interpretation it cannot be amended. Whilst construing a statutory provision the Court cannot reconstruct it. The rule consciously provides the parties with an option either to produce the evidence in support of the issues or to reserve it by making a statement to that effect. The statement itself may well be liberally construed to avoid any unnecessary technical obstacles. One such example has been given by the Division Bench in the case of Smt. Jaswant Kaur (supra). It has been held that if a statement is made by the Advocate for the plaintiff that "the plaintiff closes its evidence in the affirmative only," the same would be read to mean that the plaintiff had reserved its right to lead evidence in rebuttal. We are, therefore, unable to agree with the observations made by the learned Single Judge in the case of Kashmir Kaur (supra) that he is entitled to lead evidence in rebuttal as a matter of right. We are, therefore, unable to agree with the observations made by the learned Single Judge in the case of Kashmir Kaur (supra) that he is entitled to lead evidence in rebuttal as a matter of right. In our opinion, this observation runs contrary to the observations of the Division Bench in Jaswant Kaurs case (supra). The Division Bench has even fixed the maximum time on which the plaintiff has to exercise his option to reserve the right to lead evidence in rebuttal. It has been clearly held that such a reservation has to be made at the time of the close of the evidence of the plaintiff. We are also unable to agree with the observations of the learned Single Judge in the case of M/s Punjab Steel Corporation (supra). In that case the plaintiff sought to lead evidence in rebuttal, after the close of the evidence of the defence. At that stage, the plaintiff cannot be permitted to reserve the right to lead evidence in rebuttal. The observations of the learned Single Judge run contrary to the law laid down by the Division Bench in the case of Smt. Jaswant Kaur (supra). No doubt, the Division Bench clearly lays down that an overly strict view cannot be taken about the modality of reserving the right of rebuttal. But at the same time, it has been held that the last stage for exercising option to reserve the right of rebuttal can well be before the other party begins its evidence. We are in respectful agreement with the aforesaid observations of the Division Bench in the case of Jaswant Kaur (supra) and R.N.Mittal, J. in National Fertilizers Ltd. (supra). 10. In view of the aforesaid authoritative pronouncement by the Division Bench of this Court on this issue which covers both the situations wherein the plaintiffs had not reserved their right to lead evidence in rebuttal and also had tried to lead evidence in rebuttal on an issue which was to be proved by them, the present revision petition is found to be meritorious and as such, the same is allowed and the impugned order dated 25.05.2010 (Annexure P-1) is set aside with costs throughout.