PRAKASH RATTAN LAL Vs. MANKEY RAM

JUDGEMENT

(1.) By this petition, the petitioner has assailed order dated 7th July, 2007 passed by the learned trial court whereby the trial court allowed an application under Order XVI Rule 3 read with Section 151 CPC made by the defendant (respondent herein) and allowed the respondent to summon two more witnesses to prove land holding of the respondent being in excess of 25 bigha 1 biswa of the land.

(2.) It is submitted by counsel for the petitioner that the respondent, in the written statement, has taken specific stand that his total land holding was 25 bigha 1 biswa at village Bijwasan, Tehsil Mehrauli, New Delhi. An objection was taken about the maintainability of the suit filed by the petitioner (plaintiff before the trial court) on the ground that since the respondent had executed Agreement to Sell only in respect of the part of the land and not in respect of its entire holding, namely, 25 bigha 1 biswa, the Agreement was void and not maintainable. However, in the application made before the trial court for summoning additional evidence, the respondent took the stand that he has to prove his holding in another village showing that his holding was beyond 25 bigha 1 biswa and although he had executed various Agreements to Sell in respect of entire land of 25 bigha 1 biswa in favour of the petitioner but still these Agreements to Sell were void because his holding was more than 25 bigha 1 biswa.

(3.) This was not the stand of the defendant in the written statement. A perusal of the written statement shows that the defendant had specifically stated that his total holding was 25 bigha 1 biswa. The defendant during evidence cannot be allowed to show that his holding was much beyond 25 bigha 1 biswa.