Research › Search › Judgment

Rajasthan High Court · body

2023 DIGILAW 1100 (RAJ)

Prasann Chandra Pincha v. Kanchan Devi

2023-05-12

NUPUR BHATI

body2023
ORDER 1. Since common questions of facts and law are involved in both these writ petitions, therefore, the same were heard together and are disposed of by this common order. 2. These petitions have been filed challenging the order dated 22.01.2021 (in SBCWP No.2890/2021) and the order dated 21.08.2019 (in SBCWP No.2147/2021) passed by the learned Additional District Judge, Churu in Civil Original Suit No.37/2004 (23/1999). SBCWP No.2890/2021 has been filed with the following prayers:- "(a) The impugned order dated 22.01.2021 (Annex.7) passed by learned Additional District Judge, Churu in civil original suit no.37/2004 (23/1999) may kindly be quashed set aside so as to dismiss the respondent/plaintiff's application in toto. (b) Any other order or direction which the Hon'ble Court feels appropriate in favour of the petitioners in light of justice, equity and good conscience may also be passed." SBCWP No.2147/2021 has been filed with the following prayers:- "(A) The impugn order dated 21.08.2019 (Annexure-6) passed by the Court of Additional District & Sessions Judge, Chutu in Sessions Case no.23/1999 (26/2008) be quashed and set aside; and (B) The Application of the non-petitioner No.1 (Annexure-4) may kindly be dismissed with costs throughout; and (C) That without prejudice to the aforementioned, if the Hon'ble Court comes to the conclusion to allow the application of the Non-petitioners/uphold the impugn order Annexure-6, then the humble petitioners may be permitted to lead ocular and documentary evidence on the newly framed issue; and (D) Any other appropriate order or direction the Hon'ble Court deems just and proper be passed in favour of the petitioner." 3. The facts of the case in brief are that plaintiffs Kanchan Devi (deceased) and Prabhat Kumar Pincha (respondents Nos.1 and 2 in SBCWP No.2890/2021 and petitioners in SBCWP No.2147/2021) (hereinafter referred to as 'the plaintiffs') filed a suit for declaration and injunction against the defendants (including Prasann Kumar, petitioner in SBCWP No.2890/2021 and respondent No.1 in SBCWP No.2147/2021) (hereinafter referred to as 'the defendant No.1). It was stated in the plaint that there is a residential haveli situated in Sardarshahar having Patta No.26 dated 13.01.1954 issued in favour of one Shri Hamir Mal S/o Shri Sujan Mal and Shri Bheru Dan S/o Shri Hamir Mal and the same was in use and in possession of the plaintiffs and the defendants Nos.1 and 2 were having no right, title or possession over the same. It was stated in the plaint that said Shri Bheru Dan was married with plaintiff Smt. Kanchan Devi (deceased) and out of their wedlock a daughter Smt. Indu Rani and a son Balisht Kumar were born. Shri Balisht Kumar died on 09.02.1968. Therefore, plaintiff Smt. Kanchan Devi adopted plaintiff Prabhat (son of her daughter Smt. Indu Rani) as per the Hindu rites and customs. It was alleged in the plaint that the said haveli was in the joint names of Shri Hamir Mal and Shri Bheru Dan and upon death of Shri Bheru Dan, who expired on 03.03.1957, plaintiff Smt. Kanchan Devi succeeded the share of Shri Bheru Dan in the haveli as per the provisions of Hindu Succession Act, 1956. 4. It was further alleged in the plaint that Shri Hamir Mal transferred his share during his lifetime by executing a Tamleeknama dated 17.03.1966 in favour of his wife Smt. Laxmi Devi Pincha and Shri Balishth Kumar Pincha. However, the Tamleeknama, executed by Shri Hamir Mal, was in respect of of the entire property, whereas Shri Bheru Dan had half share in the said property and, therefore, on account of his death, his share vested in the plaintiff Smt. Kanchan Devi and since Smt. Laxmi Devi Pincha (w/o Shri Hamir Mal) died intestate, therefore, after her death (on 17.01.1977) the property devolved upon the Class I heirs. It was also alleged that the defendants and son-in-laws, namely, Chandamal Baid and Deepchand Nahta, in conspiracy, got executed a 'Will' on 16.07.1998 by Shri Hamir Mal, without his will and consent. 5. The defendants Nos.1 and 2 and proforma defendant No.3 in the suit filed their written statement. 6. The learned trial Court, based on the pleadings of the parties, framed as many as 15 issues. Thereafter, the suit was kept for evidence of the parties and after leading of evidence, the suit was kept for final arguments. Thereafter, the defendant Prasann Kumar filed an application under Order 14 Rule 5 of the Code of Civil Procedure on 24.07.2019 for framing an additional issue to which reply was filed. The learned trial Court, vide order dated 21.08.2019, allowed the same and framed a new issue No.1A as under:- 7. Thereafter, the defendant Prasann Kumar filed an application under Order 14 Rule 5 of the Code of Civil Procedure on 24.07.2019 for framing an additional issue to which reply was filed. The learned trial Court, vide order dated 21.08.2019, allowed the same and framed a new issue No.1A as under:- 7. The plaintiffs also filed an application under Order 7 Rule 14 of the Code of Civil Procedure on 14.01.2021 seeking to produce some documents so as to lead evidence in respect of the newly framed issue No.1A to which reply was filed by the defendants. The learned trial Court, vide order dated 22.01.2021, allowed the same. 8. Therefore, the defendants have preferred SBCWP No.2890/2021 being aggrieved of the order dated 22.01.2021, whereby application for taking additional documents filed by the plaintiffs has been allowed and the plaintiffs have preferred SBCWP No.2147/2021, being aggrieved of the order dated 21.08.2019 whereby the application for framing additional issue filed by the defendant No.1 has been allowed. S.B. Civil Writ Petition No.2147/2021 9. Shri Abhinav Jain, learned counsel appearing for the petitioners, submitted that the learned trial Court has allowed the application and framed the impugned additional issue No.1A, without taking into account the nature of the suit, which was filed for declaration of the Will as forged and fabricated and non-est as Shri Hamir Mal had already executed a tamleeknama during his lifetime in favour of his wife and grand-son prior to execution of the alleged Will. 10. Learned counsel for the petitioner further submitted that there was no specific pleading about the adoption and without there being any specific pleadings, the issue with regard to the same could not have been framed as the same would amount to change of nature of the suit. He submits that by filing merely an application, the defendants want to change the nature of the suit. They have not filed any counter-claim. The defendants have neither claimed to declare the adoption as null and void nor any relief has been sought by them in this regard. 11. He submits that by filing merely an application, the defendants want to change the nature of the suit. They have not filed any counter-claim. The defendants have neither claimed to declare the adoption as null and void nor any relief has been sought by them in this regard. 11. Learned Senior Counsel Shri Manish Shishodia, assisted by Shri Anirudh Khatri, appearing for the respondents, submitted that the suit has been filed on the basis of the adoption of plaintiff No.2 Prabhat Kumar and evidence has been led in this respect, therefore, the impugned issue sought to be raised was necessary and proper to decide the controversy in the suit. 12. Learned counsel for the respondents further submitted that the plaintiffs Kanchan Devi and Prabhat Kumar have mentioned about the facts regarding adoption in the affidavit and they have been cross-examined. Similarly, defendant Prasann Chandra has mentioned in his affidavit that plaintiff Prabhat Kumar is not the adopted son of Kanchan Devi. Both the parties have led their evidence and have been cross-examined but issue in this regard has not been framed. 13. He also submitted that issue can be framed at any stage. It is submitted that arguments in this respect have not yet been made. It is the defence of the defendant that Prabhat Kumar is not the adopted son, therefore, it is necessary to frame the additional issue. 14. Heard learned counsel for the parties and perused the material available on record. 15. The plaintiff, being the dominus litis, enjoys a free hand in couching the relief clauses in the manner he pleases. Here, in the instant, the relief sought four in the suit is as under:- Thus, the main relief sought by the plaintiff was challenge to the Will dated 16.07.1998. If the defendant wants to question the adoption of the plaintiff No.1, then he had a remedy available and can file a separate suit for the same. Here, in the instant, the relief sought four in the suit is as under:- Thus, the main relief sought by the plaintiff was challenge to the Will dated 16.07.1998. If the defendant wants to question the adoption of the plaintiff No.1, then he had a remedy available and can file a separate suit for the same. In the suit pending before the learned Additional District Judge, Churu, the application filed under Order 14 Rule 5 of the Code of Civil Procedure for addition of issue 'D;k izHkkr dqekj dapu nsoh dk xksn iq= gS\' amounts to challenging the adoption of plaintiff Prasann Kumar by Smt. Kanchan Devi and it virtually changes the nature of the suit filed by the plaintiffs, which is not permissible in the eye of law and as held by Hon'ble the Supreme Court in the catena of judgments that plaintiff is the dominus litis of the suit and enjoys a free hand in couching the relief clause in the manner he pleases. 16. In view of the above, this Court deems it appropriate to quash and set aside the order dated 21.08.2019 passed by the learned Additional District Judge, Churu. 17. Consequently, this writ petition (SBCWP No.2147/2021) is allowed. The impugned order dated 21.08.2019 (Annex.6), passed by the learned Additional District Judge, Churu in Civil Original Suit No.37/2004 (23/1999) is quashed and set aside and the application (Annex.4) filed by defendant Prasann Kumar is dismissed. S.B.C.W.P. No.2890/2021 18. Since S.B.C.W.P. No.2147/2021, challenging the order dated 21.08.2019, allowing the application for framing additional issue, has been allowed and the impugned order has been quashed and set aside, there is no need for the plaintiffs to lead additional evidence by filing additional documents. Hence, this petition (SBCWP No.2890/2021) also stands allowed. The impugned order dated 22.01.2021 (Annex.7), passed by the learned Additional District Judge, Churu in Civil Original Suit No.37/2004 (23/1999) allowing the application for taking additional documents on record, is quashed and set aside. 19. All pending applications including stay petitions in both the writ petitions stand disposed of accordingly.