JOGINDER KAUR Vs. BHAG SINGH

JUDGEMENT

(1.) The petitioner-plaintiff is in revision petition against the impugned order dated 19.11.2012 (Annexure P-3), whereby an application moved for impleading the LRs of defendant No.5, namely, Mohinder Kaur and for amending the written statement by treating it as a counter-claim, has been allowed by transposing them as co-plaintiffs.

(2.) Mr. Mahavir Sandhu, learned counsel appearing on behalf of the petitioner-plaintiff submits that the order impugned is not sustainable in the eyes of law in view of the provisions of Order 23 Rule 1-A of the Code of Civil Procedure (in short 'CPC') and the remedy of LRs lies elsewhere.

(3.) He further submits that until and unless the LRs are impleaded in their individual capacity, they cannot set up a different plea and take a different stand than one already taken. The suit has been filed by the plaintiff seeking following relief:- "Suit for a decree for declaration to the effect that the plaintiff has got right of inheritance in the estate left by Shri Chhaja Singh to the extent of 1/2 share in the l and bearing Khewat/Khatauni No.13/15, 16, 24/53, 25/54, Khasra No.307//103/2 min (4-10), 307//103/2 min (4-9), 1- 888//307/13/4 (0-2), 1-888//207/23 (23-3), 1-888//307/31 (52- 17), 1-888//307/10/1/2/2 (21-12), 1-888/307/21 (13-0), as per the Jamabandi for the year 2005-06 situated in village Manakpur, H.B. No.35, Tehsil and District Ambala and land bearing Khewat/Khatauni No.151/197, 198/252, 184/236, 201/255, 24/25, Khasra No.15//21/1, (0-12), 16//16/2 (1-2), 25/1(4-4), 25/2/2 (3-16), 16/16/1/1 (1-11), 13//11/2/2 (0-9), 19 (0-11), 20/1/1 (3-2), 28/4 (7-13), 5 (0-19), 6 (7-8), 9/2 (1-0), 12/16 (8-0), 24/3/2 (3-16), 8 (8-0), 18 (8-0), 20/4 (0-12), 21 (7- 4), 2/1 (1-0), as per jamabandi for the year 2003-04, situated in Village Dudiana, H.B. No.36, Tehsil and Distt. Ambala and the mutation of inheritance bearing No.181, sanctioned on 14/.8.1935 and mutation No.327 sanctioned on 14/8.1935 of Village Manakpur and Dudiana, Tehsil and District Ambala regarding inheritance of Chhajja Singh entered in the name of Ram Kishan, mutation No.289 sanctioned on 13.7.1945 in favour of Labh Singh of Village Mankapur and Mutation No.526 of Village Dudiana, Tehsil and District Ambala and mutation No.381 sanctioned on 25.8.1953 of Village Manakpur, mutation No.638 of Village Dudiana, sanctioned on 1.7.1953 and mutation No.207, sanctioned on 25.8.1953 of Village Dudiana, Tehsil and District Ambala on the basis of registered Will dated 25.1.1935 regarding the inheritance of Labh Singh in favour of Joginder Kaur and Mohinder Kaur regarding the estate of Shri Chhaja Singh of all the three villages and Mutation No.15 on the basis of manipulated Gift Deed dated 25.4.1964 and mutation No.21 on the basis of manipulated gift deed dated 25.1.1965 entered and sanctioned in the name of Shri Bhag Singh on 20.8.1965 regarding the estate of Smt. Ind Kaur of Village Dudiana, Tehsil and District Ambala and mutation No.441 of Village Manakpur, Tehsil and District Ambala, sanctioned on 28.6.1968, on the basis of the Gift Deed dated 20.2.1961 executed by Smt. Ind Kaur in favour of Bhag Singh, on the basis of the judgment and decree dated 18.9.1986 in case No.455 of 1989 titled as "Amarjit Kaur v. Bhag Singh", passed by Shri S.K. Gupta, Sub Judge, Ist Class, Ambala by which the defendant No.1 has made the defendants No.2 to 4 as owners of the land, measuring 82 kanals 19 marlas out of land measuring 110 kanals 12 marlas to the extent of 3/4 share along with mutation No.508 regarding land situated in Village Manakpur, Tehsil and District Ambala and mutation No.445 in respect of land measuring 49 kanals 18 marals out of the total land measuring 66 Kanals 10 marals to the extent of 3/4 share situated in Village Dudiana, Tehsil and District Ambala are wrong, illegal, null and void, ineffective, inoperative, result of fraud and misrepresentations, not binding upon the plaintiff and the same are liable to be set aside by declaring the Will dated 25.1.1935 executed by Chhaja Singh son of Sh. Panjab Singh in favour of Mohinder Kaur and Joginder Kaur grand-daughters of Chhja Singh is liable to be upheld with a consequential relief of permanent injunction restraining the defendants from selling, alienating and creating any sort of charge over the aforesaid land in any manner whatsoever." In the aforementioned suit, defendant No.5, Mohinder Kaur, filed the written statement admitting the claim of the plaintiff. The suit is based upon the Will dated 23.01.1935 executed by Chhaja Singh, registered on 25.01.1935, which was in the name of Mohinder Kaur and Joginder Kaur. Joginder Kaur is the plaintiff. The Court below has exceeded jurisdiction in allowing the application by granting the relief which had not been prayed for. In support of his contentions, he relies upon the ratio decidendi culled out by Hon'ble Supreme Court in "Vidyawati v. Man Mohan and others" (1995) 5 Supreme Court Cases 431 and the judgment rendered by the Kerala High Court in "Abraham v. Antony Mathew" 2007 (5) RCR (Civil) 522, thus, urges this Court for setting aside the impugned order, under challenge.