1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.596/2005 (Ramesh Chand Versus Additional Civil Judge & Judicial Magistrate & Others) Date of Order :: 31st August, 2009 PRESENT HON'BLE SHRI JUSTICE NARENDRA KUMAR JAIN Sh.Prahlad Sharma Counsel for the petitioner(s) Sh. Sudesh Bansal Counsel for the respondent(s) BY THE COURT: At the request of learned counsel for the parties, the arguments were heard and writ petition is being disposed of finally. The plaintiff-petitioner filed a suit for possession and mesne-profit in respect of property in dispute on the basis of alleged Will in his favour. The suit was contested by the defendants on the ground that subsequent to the execution of Will, a Tehrir dated 24th August, 1986 in the nature of family settlement was executed and all the four brothers were given the land in dispute equally. During the pendency of the suit, the defendants-non petitioners filed affidavits of two witnesses DW-2 Satya Narayan and DW-3 Nand Kishore and along-with their affidavits, both the documents dated 24th August, 1986 were annexed and they 2 were exhibited as Ex. 16 and 17. The plaintiff raised an objection that these documents could not have been taken on record and exhibited without seeking any permission from the court. The trial court allowed the objections of the plaintiff and vide order dated 18th March, 2004 passed an order that both the documents are deleted. Subsequently the defendants filed proper application along-with both the documents showing their relevancy and with a prayer that they may be allowed to place on record both the documents and both the witnesses DW-2 Satya Narayan and DW-3 Nand Kishore be re-summoned to prove the aforesaid documents. The trial court vide impugned order dated 31st August, 2004 allowed the application under Order 16 Rule 1 (3) readwith Section 151 CPC filed by defendants. Being aggrieved with the same, the plaintiff preferred this writ petition. The submission of learned counsel for the petitioner is that both the documents are not material and relevant in the facts and circumstances of the present case and further that the trial court itself deleted both the documents from the record vide order dated 18th March, 2004, therefore, in these circumstances, 3 the impugned order could not have been passed. He further contended that the trial court has not only allowed the defendants to summon both the witnesses, but in fact has allowed to exhibit the documents also from their statement without reserving any right of the petitioner to raise an objection about their admissibility, therefore, the impugned order is liable to be set-aside by this Court. The learned counsel for the respondents contended that plaintiff and defendants, both, are brothers. The plaintiff is claiming the entire property on the basis of so-called 'Will' in his favour, whereas the defendants are claiming their share in it on the basis of documents dated 24th August, 1986 executed subsequent to the execution of the Will, therefore, both the documents are relevant and material for deciding the real controversy in between both the parties. Earlier the documents were annexed and they were exhibited along-with the affidavits, but on raising objection by the plaintiff, the same were deleted only on the ground that without seeking permission from the court, the same could not have been placed on record, therefore, the proper application was filed 4 seeking permission from the Court, which has now been allowed by the court below. So far as observation of the trial court regarding exhibiting both the documents is concerned, he fairly and frankly contended that a liberty may be granted to the plaintiff to raise an objection about admissibility of the documents as and when they are exhibited on the basis of statement of witnesses Satya Narayan and Nand Kishore. I have considered the submissions of learned counsel for the parties in the light of reasons assigned by the trial court in the impugned order and after considering the same, I find that so far as the documents dated 24th August, 1986 are concerned, they appear to be relevant for the purpose of deciding the real controversy in between both the parties. So far as the objection of the plaintiff about their genuineness and their admissibility are concerned, the plaintiff will have a right to take all legal objections at the time of admissibility of both the documents on the basis of statements of Satya Narayan and Nand Kishore, who have been summoned vide impugned order dated 31st August, 2004. The plaintiff will have a right to controvert the aforesaid 5 documents by adducing any other document in his favour within reasonable time and even otherwise the plaintiff will have a right to rebut the same. With the aforesaid observation and liberty to plaintiff, the writ petition is disposed of. The parties are directed to bear their own costs. (NARENDRA KUMAR JAIN),J. DK/