ISHWAR DASS AGGARWAL Vs. NIRMALA DEVI

JUDGEMENT

(1.) THIS is a petition filed by the petitioners/plaintiffs under Article 227 of the Constitution of India, against the order passed by the learned Additional District Judge (Fast Track Court), Hamirpur, dated 17.9.2009, allowing the application filed by the respondents for additional evidence under Rule 41 Rule 27 C.P.C.

(2.) BEING aggrieved, the petitioner has filed the present petition. A notice of the petition was issued to the respondents.

(3.) THE learned trial Court observed that the mutation was sanctioned on the basis of the alleged oral Will allegedly executed by Parkash Chand, copy of which is Ext. P-5, which was sanctioned in favour of the appellants/defendants. It was observed that from the initial stage the appellants had set up this Will and even on the basis of it, mutation was sanctioned in favour of the appellants. THEre was a reference that there was "Basiyat Jabani" and the observations made whether wrongly or rightly is that this term is generally used by the Revenue Department when it is not a registered Will. It was also observed that the entire controversy between the parties revolves around the alleged Will which had been set up right from the stage of written statement. By the said application, the appellants/defendants alleged that the Will was misplaced and it was found in the brief of the counsel in the Supreme Court in an another connected case. Thus, it was observed that the production of the Will and its proof is warranted and as such, since the appellants were not able to prove the same inspite of due diligence, it is also required by the learned Appellate Court for pronouncement of the judgment, the application was allowed. THE reasoning taken by the learned counsel for the petitioner in the present petition was that the mutation was sanctioned in favour of the defendants on the basis of oral Will and allowing the appellants to prove the said Will, will not be necessary. It was also submitted that the learned Appellate Court had committed grave error in appreciating that the mutation of inheritance was sanctioned in the year 1984 and since the same was in possession of defendants, the said Will should have been produced earlier, but it was never produced and neither it is required for just decision of the case, nor the appellants had been able to make out a case that inspite of their best efforts, they could not produce the Will in question.