RADHESHYAM Vs. KAMLA DEVI

JUDGEMENT

(1.) This petition is preferred under Article 227 of the Constitution of India against the order dated 9.1.2020 (Annexure P/1) passed by First Civil Judge Class-2, Ambah, District Morena in Case No. 90A/2017 RCS, whereby the application filed by the respondent No.1 under Section 151 CPC for carrying out DNA test of defendant Kamla Devi and petitioner/plaintiff has been allowed.

(2.) The facts of the case in nutshell are that a suit for title declaration and permanent injunction has been filed by the petitioner/plaintiff against the respondents/ defendants in respect of agricultural land situated in village Barbai Tehsil Porsa, District Morena. The land bearing survey No. 869/2062 is under absolute ownership and possession of the petitioner. The petitioner's family tree has been given in para 2 of the plaint. The respondent No.1 is not the family member of plaintiff, therefore, no share can be given to respondent Kamla Devi. Some Bhu-mafia persons of the village filed an appeal before the Sub-Divisional Officer, Ambah showing respondent No.1-Kamla Devi to be daughter of Betal Singh while Betal Singh has no legal heirs and in fact Kamla Devi is daughter of Hubbalal, who has died. The Sub-Divisional Officer, Ambah allowed the appeal by order dated 25.10.2017 and held that Kamla Devi is the daughter of Betal Singh having 1/3rd share in the property. The said order dated 25.10.2017 was challenged before the Commissioner, Chambal Division, Morena. Since during the aforesaid period respondent No.1-Kamla Devi was trying to sell out the property, therefore, the suit has been filed for restraining them not to alienate the property and also to declare the petitioner/plaintiff to be the owner of 1/2 share and also for declaring the order of Sub-Divisional Officer Ambah dated 25.10.2016 to be null and void. The respondent No.1 filed her written statement claiming herself to be the daughter of Betal Singh. The trial Court framed the issues and fixed the case for recording of evidence. The respondent No.1 filed an application under Section 151 CPC with the prayer that the DNA test of defendant Kamla Devi and plaintiff be carried out. The said application has been opposed by the petitioner on the ground that as per resolution of Village Panchayat, plaintiff is the son of Betal Singh, and the defendant No.1 had not raised any objection. Moreover, DNA test is not the conclusive evidence and the respondent No.1 is bound to prove her case through evidence. Despite, the trial Court has allowed the said application by the order impugned. Being aggrieved by the impugned order, the petitioner has preferred the present petition.

(3.) Learned counsel for the petitioner has submitted that the order impugned is perverse and against the provisions of law. It is further submitted that in the light of the judgment passed in Shri Banarsi Dass vs. Mr. Teeku Dutta and Another (S.L.P.(C) No. 17427 of 2004, decided on 27.4.2005), wherein earlier judgment in Gautam Kandu vs. State of West Bengal and another , 1993 3 SCC 418 was relied on, no order could be passed for conducting DNA test. Hence, learned counsel for the petitioner prays to set aside the impugned order Annexure P/1.