High Court of Punjab and Haryana, Chandigarh
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Tejinder Kaur v. Kishan Singh & Ors - CR-1142-2005  RD-P&H 5396 (8 August 2006)
THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
C.R. No.1142 of 2005 (O&M)
Date of Decision: 20 - 7 -2006
Tejinder Kaur ........Petitioner
Kishan Singh and others .......Respondents
CORAM: HON'BLE MR.JUSTICE P.S.PATWALIA
Present: Mr.V.G.Dogra, Advocate
for the petitioner.
Mr.Atul Nehra, Advocate
for respondent No.1.
This revision petition arises out of an order passed by the Civil Judge (Jr.Division), Nakodar vide which an application moved by the petitioner- defendant No.5 to appoint a revenue official to prepare an excerpt in order to prove the property in dispute as an ancestral/co-parcenary property has been dismissed.
The respondent-plaintiff filed a suit for possession by way of specific performance of an agreement to sell dated 30.7.1990. The petitioner is arrayed as defendant No.5 in the suit. She had filed a written statement in the suit contesting the same inter alia on the ground that the property in dispute was an ancestral/co- parcenary property and deceased Resham Singh had no authority or right to enter into an agreement to sell without any legal necessity. It was therefore contended C.R. No.1142 of 2005 (O&M) 
that the alleged agreement being illegal and without consideration was not enforceable. It was to prove this contention that an application had been moved by the petitioner-defendant No.5 to prepare an excerpt of the property.
In support of the revision petition, learned counsel for the petitioner- defendant No.5 pointed out that earlier an identical application had been moved by defendant No.2 brother of petitioner-defendant No.5. The trial Court by an order dated 7.12.2004 had allowed the application. However, subsequently, the said order was recalled on an application filed by the respondent-plaintiff on the ground that the evidence of defendant No.2 Satnam Singh had been closed by order and therefore without getting the said order set aside, he had no right to move such an application. It was on that ground that the order allowing an application filed by defendant No.2 was recalled.
Counsel therefore submits that once the civil Court had already allowed the application of a co-defendant which order had been recalled on the ground aforementioned, there is no justification now to dis-allow the application filed by the present petitioner-defendant No.5. He submits that petitioner- defendant No.5 is actively participating in the proceedings before the trial Court and would lead evidence in support of her claim. Still further it was stated that the preparation of the excerpt was necessary to substantiate the contention raised in the written statement and to urge that the agreement to sell being against law could not be enforced.
On the other hand, counsel for the plaintiff-respondent has argued that the petitioner has mis-stated that the property in question was ancestral/co- parcenary property. He has further argued that the petitioner-defendant No.5 is a married daughter of the deceased Karta and has no locus standi to raise a dispute that the property is ancestral. It is also argued that the property was self acquired property of the Karta.
On a consideration of the matter, I am of the opinion that this C.R. No.1142 of 2005 (O&M) 
revision petition is liable to succeed. It is clear from a perusal of the orders placed on the record that an identical application moved by defendant No.2 was allowed which order was recalled only on the ground that the application was moved after the evidence of that defendant had been closed by order. Therefore, there was no justification with the trial Court to deny the said claim of petitioner-defendant No.5. Even otherwise, I am of the opinion that once the petitioner-defendant No.5 had raised a plea that the property in dispute was ancestral and the alienation was without there being legal necessity and therefore the agreement was not enforceable, she should have been permitted to lead evidence to substantiate that claim.
In so far as the contentions of learned counsel for the respondent- plaintiff are concerned, I find that they are all touching the merits of the controversy. Undoubtedly, the respondent-plaintiff would be free to raise all the pleas before the trial Court at the time of the trial and in case the petitioner- defendant No.5 is found to have no locus standi in the matter, the findings would be recorded accordingly by the trial Court.
For the reasons aforementioned, this revision petition is allowed.
The order of the trial Court dated 3.2.2005 is set aside and the application filed by the petitioner-defendant No.5 seeking appointment of the revenue official to prepare an excerpt as mentioned in the application is allowed.
( P.S.PATWALIA )
July 20th, 2006. JUDGE
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