CR No.929 of 2010 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on 20.7.2010. Karnail Singh Bath --Petitioner vs. Gurmail Singh and another -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Amrik Singh,Advocate, for the petitioner Mr.R.K.Chhibbar,Sr.Advocate,with Ms.Meenu Sharma, Advocate,for the respondents. Rakesh Kumar Jain, J, This order shall dispose of two Civil Revisions bearing No. 929 of 2010 titled as Karnail Singh Bath Vs. Gurmail Singh and Civil Revision No. 930 of 2010 titled as Karnail Singh Bath Vs. Gurmail Singh and others arising out of almost identical orders passed by Addl.Civil Judge (Senior Division), Ropar, dated 23.1.2010, by which an application filed by the petitioner under Section 151 of Code of Civil Procedure,1908 (for short CPC) for permission to produce the copies of mutation of the property in dispute in favour of his father from his grand father, copies of the jamabandi for the period thereafter and documents showing the old and new khasra number as additional evidence, has been dismissed. In Civil Suit No. 807 dated 21.3.2003 titled as Karnail Singh CR No.929 of 2010 (O&M) 2 Vs. Amar Singh and others from which Civil Revision No. 929 of 2010 has arisen, the plaintiff/petitioner has sought declaration to the effect that the sale deed executed by Amar Singh (his father) in favour of Gurmail Singh (respondent No.1) on 7.3.2003, is illegal and without any legal necessity. In Civil Suit No. 345 of 21.10.2005 titled as Karnail Singh Vs. Amar Singh etc, the plaintiff/petitioner has sought declaration to the effect that the sale deed executed by Amar Singh (his father) in favour of Swaran Singh and Makhan Singh on 9.9.2005 is without any legal necessity. However, the facts are extracted from Civil Suit No.807 of 21.3.2003 titled as Karnail Singh Vs. Amar Sinth and others. This suit was filed in March,2003 in which issues were framed on 10.10.2005 and evidence was closed on 26.5.2007,whereas application for additional evidence was filed on 22.9.2009 at the stage of rebuttal and arguments. Learned counsel for the petitioner has vehemently argued that the land in dispute is ancestral which has been sold by his father without any legal necessity would not effect his rights. It is submitted that the aforesaid averment has been made in paragraph 5 of the plaint “that the land is ancestral one and the plaintiff has the share as coparcenor in the property in question under the Hindu Law.” It is further submitted by the learned counsel for the petitioner that in order to prove the nature of the land, the petitioner wanted to lead additional evidence by way of producing the original record which could be traced after a lot of efforts. It is also submitted that the procedure is hand maid of justice and the decision of a meritorious matters should not be curtailed on mere technicalities. On the other hand, learned counsel for the respondents has CR No.929 of 2010 (O&M) 3 vehemently argued that the petitioner wanted to lead evidence without pleading as to how the property is ancestral in his hand. There is no issue framed with regard to the property to be ancestral. The application has been filed after expiry of four years from the date of framing of issues and two years from the date of closure of evidence, at the stage of rebuttal and arguments, without disclosing as to how he obtained the revenue record because there is nothing on record to show as to on which date the revenue record was applied and on which date he received the same. It is also questioned that if the sole basis of the suit of the plaintiff is the nature of the land being ancestral, then besides making the bald averments in the plaint, he should have been ready with the relevant record and should have tendered the same at the time when he was leading his evidence. It is also questioned that in the absence of any pleadings and issues, whether the evidence much-less additional evidence can be allowed to be led ?. Mr.R.K.Chhibbar, learned senior counsel appearing for the respondent has further argued that in order to prove the property to be ancestral, the petitioner has to plead that he has inherited the suit property from three immediate paternal ancestors, whereas in the present case, he could not even disclose the name of his grand father. I have heard learned counsel for the parties and perused the record with their assistance. Although the learned Court below has dismissed the application of the petitioner on the ground that he has miserably failed to prove necessary ingredients of Order 18 Rule 17-A of Code of Civil Procedure,1908 ( for short 'CPC), which though has been deleted after the amendment in the CPC , yet an important fact cannot be ignored by this CR No.929 of 2010 (O&M) 4 Court that the plaintiff had filed two suits basically on the same cause of action that the land being ancestral has been sold by his father without legal necessity even without making an averments in the plaint as to how the property is ancestral in nature. Only a bald averment has been made that the property is ancestral, though the suit was filed only on the ground that the property is ancestral but no evidence was led by the plaintiff in this regard before closing the same. Moreover, the plaintiff did not ask for any issues with regard to the nature of the property in dispute, though, in the written statement filed by the petitioner, he has specifically averred that the property in dispute is not ancestral, then it was incumbent upon the plaintiff to prove this fact by seeking a issue, but as per the order dated 10.10.2005, said issue was not asked for . The order dated 10.10.2005 is reproduced below:- “Present: Counsel for the parties. Replicaton to the written statement filed.Copy supplied. From the pleadings of the parties, following issues are framed:- 1. Whether the plaintiff is entitled to decree of declaration as prayed for ? OPP 2. Whether the suit of the plaintiff is not maintainable,as the plaintiff is neither the owner nor in possession of the suit property ? OPD 3. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction ? OPD 4. Relief:” No other issue arises or is pressed for. Now to come up on 10.12.2005 for evidence of the plaintiff. PF/DM and list of witnesses be filed within 3 days”. In the aforesaid order, it is specifically mentioned that no other issue arises or is pressed for. Thus, in the absence of any issue having been framed and also no evidence was led in order to prove that the property is ancestral when it was closed in affirmative, in my view the petitioner is not entitled to lead CR No.929 of 2010 (O&M) 5 additional evidence in this regard. In view of the above, I do not find any merit in these revision petitions in order to interfere with the well reasoned order of the trial Court and the same are hereby dismissed. No costs. 20.7.2010 (Rakesh Kumar Jain) RR Judge