MANJIT SINGH LASSI Vs. COL. GURCHARAN SINGH

JUDGEMENT

(1.) IN order to assail the order dated 16.9.2003 passed by the Civil Judge (Junior Division), Nabha, whereby the application filed by the defendant-petitioner under Order 18. Rule 1, C.P.C., has been dismissed and the defendant has been ordered to adduce his evidence in the first instance.

(2.) THE undisputed facts of the case are that the petitioner (defendant No. 1) and respondent No. 1 (plaintiff) are the sons of Inderjit Singh Lassi deceased. Inderjit Singh was the absolute owner of the suit property. On the death of his father Inderjit Singh Lassi, respondent No. 1 Col. Gurcharan Singh filed a suit for possession through partition on the basis of natural succession. The suit was contested by Manjit Singh Lassi petitioner and he filed written statement, wherein he admitted the relationship with the plaintiff-respondent No. 1 as well as the fact that Inderjit Singh Lassi, their father, was the absolute owner of the suit property. However, in the written statement, an averment was made by the petitioner-defendant that his father Inderjit Singh Lassi had executed a registered will in his favour, whereby he bequeathed his entire property in this favour. On the pleadings of the parties, the Civil Judge (Junior Division), Nabha, framed a number of issues on 16.8.2000 and the onus to prove the registered Will dated 4.2.1974 was put on defendant No. 1 (present petitioner) and fixed the case for evidence of the defendant-petitioner on 9.10.2000. Thereafter, petitioner continued filing applications one after the other. Ultimately, the petitioner moved the application under Order 18, Rule 1, C.P.C., on 3.1.2003, i.e., after 2 years and 5 months of the framing of the issues by the trial Court and he was ordered to lead the evidence in the first instance to prove the Will set up by him. The said application has been dismissed by the trial Court vide order dated 16.9.2003 and the case has been fixed for the evidence of the defendant on 6.11.2003. The order dated 16.9.2003 has been impugned in the present revision petition.

(3.) IN order to controvert the contention of the learned counsel for he petitioner. Mr. Arun Palli, learned counsel for respondent No. 1, has placed reliance on Chandralatha v. Annamallai Finance Ltd., 1996(2) Civil Court Cases 30 (Kerala), in order to contend that the right to lead evidence shifts to defendant when the defendant admits the main allegations made by the plaintiff.