PARAMJIT KAUR Vs. SURINDER SINGH

JUDGEMENT

(1.) The prayer for framing of additional issue relating to Will executed by Chhajju Singh, father of the parties having been declined by the trial Court vide order dated 22.2.2011, Annexure P.1, has prompted the plaintiff-petitioner to approach this Court by way of present revision petition impugning the said order.

(2.) Brief facts may be noticed. The plaintiff-petitioner filed a suit on 30.8.2006 for permanent injunction restraining the defendant-respondent from interfering into her peaceful possession and alienating more than his share out of the suit land. The suit was contested by the respondent by filing written statement. Application for amendment of the written statement was filed by the respondent on 28.2.2008. The respondent pleaded unregistered Will dated 3.12.2005 alleged to be executed by the father of the parties in his favour. He claimed ownership as well as possession over the suit property in view of the alleged Will. Evidence was led by both the parties. Thereafter, the petitioner filed an application to frame additional issue on the Will in question. The trial court after hearing learned counsel for the parties dismissed the said application vide order dated 22.2.2011 impugned herein. Hence this revision petition.

(3.) Learned counsel for the petitioner submitted that as per pleadings of the parties, the defendant had taken a specific plea that there was a Will dated 3.12.2005 executed by Chhajju Singh in his favour which fact was denied in the replication on the basis of provisions of Order 14 Rules 1, 2, 3 and 5 of the Code of Civil Procedure (in short, "the Code"). The issue with regard to validity of the Will arose for determination in the suit. The trial Court having failed to formulate the said issue had not exercised jurisdiction vested in it by law. Learned counsel for the petitioner relied upon judgment of the Hon'ble Supreme Court in Corporation of the City of Bangalore v. M.Papaiah and another, 1989 AIR(SC) 1809, judgments of this Court in Rajinder Tandon v. Thomas Nasir Masih, 1999 1 CivCC 702, Madan Mohan v. Arun Kumar and others, 1984 1 RentLR 492 and Gurcharan Singh v. Sadhu Ram and others, 1995 1 CivCC 194 in support of his submissions.