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MOTI SINGH v SMT. DEV BAI DOONGARWAL & ORS. - CW Case No. 3256 of 2004  RD-RJ 182 (20 January 2005)
S.B. CIVIL WRIT PETITION NO.3256/2004
Moti Singh vs. Smt. Dev Bai and others.
Date : 20.1.2005
HON'BLE MR. PRAKASH TATIA, J.
Mr. J.K. Bhaiya, for the petitioner.
Mr. L.M. Lodha a/w Mr. R.K. Rathi the respondent no.7.
The case is listed for service of notice of respondents no.1 and 4 but it appears from the impugned order dated 23.4.2004 that the trial court allowed the application of the defendant no.7 after hearing the defendant no.7 and plaintiff only. The trial court by the impugned order deleted all the issues framed on 10.3.2003 and framed two new issues in place of all other issues.
Since the order was passed on the application of the defendant no.7 and is being challenged by the plaintiff only, therefore, the service of respondents no.1 and 4 is not necessary, hence dispensed with.
Other respondents have already been served but appearance has been given on behalf of respondent no.7/ defendant no.7 only.
At the request of learned counsel for the parties, the petition is heard on merits today itself.
According to learned counsel for the petitioner, the trial court committed serious error of law in deleting all the issues framed on 10.3.2003 on
Page numbers application (Annex.5) which was filed by the defendant no.7 wherein the defendant no.7 requested framing of four issues and in that application, the defendant no.7 never requested for deleting earlier framed issues. The defendant no.7 only requested that the issues proposed may be framed.
Learned counsel for the petitioner submits that the issues framed on 10.3.2003 were framed on the basis of pleadings of the parties and documents. It is also submitted that the issues dated 10.3.2003 will make the issues clear in the mind of contesting parties and by that, they will know what plea one has taken and which party is to prove which fact.
Learned counsel for the respondent no.7 vehemently submitted that the issues can be framed on the basis of plea taken by the plaintiff. It is submitted that the plaintiff's case is required to be proved by the plaintiff only and without proving that, the plaintiff cannot proceed to contest the claim which has been raised by the defendants in the written statement. It is also submitted that the very foundation of the plaintiff's suit is that the property in dispute is an ancestral property, therefore, the trial court was fully right in framing the issue regarding the plea taken by the plaintiff and, therefore, rightly framed new issue vide order dated 23.4.2004.
Learned counsel for the respondent no.7 further vehemently submitted that in a suit for partition, the
Page numbers plaintiff is required to prove his right to get the partition and share also. Rest of the questions will be in rebuttal only and, therefore, by the issue which were framed by the trial court on 23.4.2004, the entire controversy shall stand covered and the learned trial court also held so and, therefore, the trial court rightly deleted the issues framed earlier.
I have considered the submissions of learned counsel for the parties and perused the issues framed by the trial court on 10.3.2003 and the issues framed on 23.4.2004 and so also, the pleas taken by the parties.
It is not in dispute that the plaintiff filed a suit for partition claiming the properties mentioned in the Scheduled attached to the plaint as ancestral property. The plaintiff also pleaded that the properties were never partitioned. The plaintiff further pleaded what are the shares of the parties.
In view of the above, the basic issue which should have been framed by the trial court while framing issues on 10.3.2003 is the issue no.1 which has been framed by the trial court by order dated 23.4.2004.
Therefore, this issue is necessary and the court below rightly framed the issue.
The issues are required to be framed on the basis of pleadings of the parties which include pleadings of
Page numbers the contesting parties. Issues are required to be framed for the material facts and points of law. Since in this case, different defendants have taken various defences like execution of a will by late Amba Lal in his life time by which according to the defendants no.1, 2, 5 and 7, the plaintiff has no right in the property. This is a material defence taken by the defendants. The defendants no.1, 2, 5 and 7 have taken a specific plea that the property situated at
Bhupalpura is a self acquired property as it was purchased by the income of late Amba Lal and the defendants further took a plea that the construction over this property was raised after taking loan. This is also a relevant issue between the parties.
The issues no.3, 4 and 5 as were framed vide order dated 10.3.2003 are necessary which will help in deciding the question of facts for which there is a dispute between the parties.
In view of the above, the deletion of the earlier framed issues cannot be justified. It appears that the trial court proceeded on assumption that on proving the plea taken by the plaintiff alone, the suit can be decreed and there is no need to frame issues on the pleas taken by the defendants. That assumption was absolutely erroneous. It was proper to frame additional issue on application of the defendant no.7 but without deleting the issues already framed.
In view of the above, this writ petition is partly
Page numbers allowed and the framing of the issues by the trial court by order dated 23.4.2004 is upheld but the order of the trial court deleting the already framed issues dated 10.3.2003 is set aside.
The issue no.1 framed by the trial court by order dated 23.4.2004 is numbered as issue no.1, the issues no.2 to 5 framed by the trial court by order dated 10.3.2003 shall be numbered thereafter in descending number and the issue no.2 framed by the trial court by order dated 23.4.2004 shall be numbered as issue no.6 and the issue of relief shall be numbered as issue no.7. The trial court may recast the issue in the order as mentioned above for clarity.
(PRAKASH TATIA), J.
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