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Rajasthan High Court · body

2016 DIGILAW 151 (RAJ)

Hardev Singh v. Sumitra

2016-01-25

ARUN BHANSALI

body2016
ORDER : Arun Bhansali, J. Heard learned counsel for the parties. 2. This writ petition has been filed by the petitioner aggrieved against the order dated 24.08.2015 passed by the trial court, whereby while deciding the application filed by the respondent under Section 136 of the Evidence Act, the trial court has directed that the petitioner would be free to lead evidence qua permanent injunction and that it would not be relevant to lead evidence qua the Will. 3. The petitioner filed a suit for permanent injunction, inter alia, based on title which he claims to have derived by way of a Will. The suit was resisted by the respondents-defendants by questioning the legality and validity of the Will. Based on the pleadings of the parties, the trial court framed four issues. 4. The first issue pertains to whether the petitioner was the sole-owner of the property and is in a possession and whether the defendants have interfered with the same which has resulted in cause of action; second issue pertains to maintainability of the suit under Section 41(h) of the Specific Relief Act, 1963 and the third issue pertains to whether the suit was bad for non-joinder of the parties. 5. The petitioner filed an affidavit including affidavits of witnesses pertaining to the Will. Where after the present application was filed by the respondent seeking exclusion of the said affidavits and order against the petitioner from leading evidence. 6. The trial court, after hearing the parties, came to the conclusion that a serious question pertaining to title was involved in the suit, which cannot be decided in a suit for permanent injunction and petitioner cannot lead evidence for proving the Will as the decision on title was not the subject-matter of the suit and consequently passed direction as noticed here-in-before. 7. It is submitted by learned counsel for the petitioner that the trial court committed error in allowing the application filed by the respondents, inasmuch as, the issues clearly pertain to title/possession of the petitioner and as to whether such a suit was maintainable or not. 8. Therefore, at this stage the trial court could not have prevented the petitioner from leading evidence on issue No.1 and, therefore, the order impugned deserves to be quashed and set aside. 9. Learned counsel for the respondents supported the order impugned. 8. Therefore, at this stage the trial court could not have prevented the petitioner from leading evidence on issue No.1 and, therefore, the order impugned deserves to be quashed and set aside. 9. Learned counsel for the respondents supported the order impugned. It was submitted that the petitioners have filed a suit for mere injunction and were seeking to prove their title in the said suit and therefore, the application was rightly accepted by the trial court and the order does not call for any interference. 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. As noticed here-in-before, the issue in the suit pertains to the title and possession of the petitioner along with the objection of the respondent that the relief sought by the petitioner could not be granted in a suit for injunction. 12. The very fact that issue in this regard has been framed by the trial court, the petitioner is entitled to lead evidence on the said issue including the evidence qua the validity of the Will, on which reliance was being placed by him. However, once the evidence is led, it is for the trial court to decide on the fundamental aspect as to whether a finding qua the title can be recorded in the suit or not and based on its finding on the said fundamental aspect, the admissibility and/or relevance of the evidence would have to be examined. At the stage, wherein the trial court has decided the application and has made observations regarding the nature of the suit and the requirements, the same appears to be wholly pre-mature, which cannot be sustained. 13. In view of the above discussion, the writ petition filed by the petitioner is allowed. The impugned order dated 24.08.2015 passed by the trial court is set aside. 14. The petitioner would be permitted to lead evidence on the issues as framed by the trial court and the court would be free to decide the suit in terms of the observations made here-in-before.