THAKUR DASS Vs. SUKHDEV & OTHERS

JUDGEMENT

(1.) Being aggrieved and dis-satisfied with the impugned order dated 11.01.2018, passed by learned Civil Judge (Jr.Division), Court No.3, Ghumarwin, District Bilaspur, H.P., whereby an application under Sec. 151 of the Code of Civil Procedure (for short 'CPC') having been filed by the respondentsdefendants No.2 & 3 (hereinafter referred to as 'defendants No.2 & 3'), seeking therein permission to file separate written statement came to be allowed, the petitioner-plaintiff (hereinafter referred to as 'plaintiff') has approached this Court in the instant proceedings filed under Art. 227 of the Constitution of India, with a prayer to set aside the impugned order referred hereinabove.

(2.) Briefly stated facts, as emerge from the record, are that the plaintiff filed a suit under Sec. 34 of the Specific Relief Act for declaration to the effect that the plaintiff and defendant No.1 are co-owners in joint possession in equal share qua the share of their father Shri Munshi Ram @ Munshi in the suit land as described in the plaint on the basis of registered Will dated 23.4.1997 executed by him. Plaintiff by way of aforesaid suit also sought declaration that if any other document purporting to be Will is produced by the defendants then same be declared illegal, wrong, null and void and result of fraud, undue influence and misrepresentation. Plaintiff further prayed that the defendants may be restrained from creating any charge, cutting the trees, changing the nature, alienating the land, raising any construction and getting the mutation sanctioned on the basis of the alleged Will dated 11.12.2009.

(3.) Aforesaid suit, having been filed by the plaintiff, came to be resisted by way of written statement, having been filed on behalf of defendants No.1 to 3 and 13, wherein defendant No.1, father of defendants No.2 and 3, who were minors at that time, admitted factum with regard to execution and registration of Will dated 23.4.1997. During the pendency of suit, referred hereinabove, defendants No.2 and 3 filed application under Sec. 151 CPC, seeking therein permission of Court to file their separate written statement. In the said application, defendants No.2 and 3 averred that in a suit having been filed by the plaintiff they were earlier being represented by their father, defendant No.1 Shri Sukh Dev, whose interest is adverse to their interest. They further averred in the application that after attaining the majority, they were summoned by Court to defend their case and when they engaged their counsel, it transpired that interest of defendant No.1 is with that of plaintiff, wherein he has admitted the claim of plaintiff which is against the interest of applicant. Defendants No.2 and 3 averred in the application that defendant No.1, whose interest is with the plaintiff, could not be the guardian of defendants No.2 and 3 and as such he has no right to file written statement on their behalf.