C.R.No.5481 of 2009 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.5481 of 2009 Date of Decision: 16.8.2011 Nishan Singh and others ....Petitioners Versus Bagicha Singh and others .....Respondents CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. N.S. Sodhi, Advocate for the petitioners. Mr.Ashish Gupta, Advocate for the respondents. JASWANT SINGH, J Legal heirs (petitioners) of original plaintiff-Kirpal have filed the present petition under Article 227 of the Constitution for setting aside the impugned order dated 15.6.2009 (P.1) passed by the learned Civil Judge (Jr. Division), Moga vide which an application filed by the defendant No.1-respondent No.1 for consolidation of Civil Suit No.RT 810 titled as Kirpal Singh v. Bagicha Singh (hereinafter to be referred as “subsequent suit”) along with Civil Suit No.RT 540 titled as Kirpal Singh v. Bagicha Singh (hereinafter to be referred as “earlier suit”) has been allowed and the subsequent suit is ordered to be clubbed with the earlier suit. Brief facts of the case are that plaintiff-Kirpal Singh (since deceased) filed the subsequent suit for declaration to the effect that he is owner of land measuring 100 kanal out of 199 kanal 19 marla as described in the head note of the plaint situated in the area of Village C.R.No.5481 of 2009 #2# Galoti, Tehsil and District Moga and the alleged gift deed dated 30.3.1964 executed by one Partap Singh s/o Sudh Singh in favour of defendant No.1-respondent No.1 Bagicha Singh is null and void and consequent mutation is also illegal. It was further alleged that the sale deeds as described in the head note of the plaint allegedly executed by defendant No.1-respondent No.1 in favour of defendant -respondent No.5 are also illegal and ineffective and liable to be set aside with a further consequential relief of permanent injunction restraining defendant -respondent No.5 from alienating the suit property in any manner. During the pendency of the civil suit, defendant-respondent No.1 filed an application dated 15.1.2009 (P.2) with a prayer that both the civil suits pending for 19.1.2009 be clubbed together to avoid any conflicting judgment. Upon notice, the application was seriously opposed by filing reply dated 2.3.2009 (P.3) wherein it was submitted that the subsequent suit is based on the alleged gift deed whereas the earlier suit is based on Will allegedly executed by Partap Singh in favour of Bagicha Singh. After hearing both the sides, learned trial Court has allowed the application vide the impugned order, hence the present petition. After hearing learned counsel for the parties and perusing the paper book, this court does not find any merit in the present petition and the same deserves dismissal. Learned counsel for the petitioners argues that neither the nature of both the suits is the same nor the documents, which are to be C.R.No.5481 of 2009 #3# relied upon by both the parties, can be the same as the earlier case is based on the Will whereas the subsequent suit is based on the alleged gift deed executed by Partap Singh in favour of Bagicha Singh/defendant-respondent No.1. On the other hand, learned counsel for the respondents fully supported the impugned order submitting that the same does not warrant any interference by this Court. Learned trial Court after perusal of case file of both the civil suits has come to the conclusion that both the suits are pending between the same parties. In the earlier suit, plaintiff has challenged the gift deed dated 30.3.1964 alleged to have been executed in favour of defendant-respondent No.1 Bagicha Singh whereas in the subsequent suit, the plaintiff has challenged the will dated 28.8.1969 registered on 2.9.1969 in favour of defendant Bagicha Singh. Learned trial Court has further recorded that “the perusal of issues reveal that Will dated 2.6.1969 has been propounded by the defendant in both the suits”. Thus, keeping in view the interest of justice, both the suits have been ordered to be consolidated and the subsequent suit is ordered to be clubbed with the earlier suit and the evidence led in the earlier suit will be read in the subsequent suit. Photo copies of the paper book of both the suits have been produced before this Court a perusal of which show that the plaintiff- Kirpal Singh (since deceased) filed the subsequent suit for declaration to the effect that he is owner of land measuring 100 kanal out of 199 C.R.No.5481 of 2009 #4# kanal 19 marla as described in the head note of the plaint situated in the area of Village Galoti, Tehsil and District Moga and the alleged gift deed dated 30.3.1964 executed by one Partap Singh s/o Sudh Singh in favour of defendant No.1-respondent No.1 Bagicha Singh is null and void and consequent mutation is also illegal. It was further alleged that the sale deeds as described in the head note of the plaint allegedly executed by defendant No.1-respondent No.1 in favour of defendant -respondent No.5 are also illegal and ineffective and liable to be set aside with a further consequential relief of permanent injunction restraining defendant-respondent No.5 from alienating the suit property in any manner. Whereas the earlier suit was filed by the plaintiff Kirpal Singh for declaration to the effect that he is owner of land measuring 71 kanal 16 marla of the land measuring 143 kanal 12 marla as described in the head note of the plaint in the area of Village Galoti, District Moga and the alleged will dated 2.9.1969 executed by Partap Singh in favour of defendant-respondent No.1 Bagicha Singh is null and void and subsequent mutation is also illegal and liable to be set aside with a further consequential relief of permanent injunction restraining defendant-respondent No.1 in any manner. In the subsequent suit, defendant-respondent No.1 filed his written statement by raising the preliminary objections inter alia as under: “After the death of Partap Singh, defendant No.1 succeeded to the property of Partap Singh as his son. C.R.No.5481 of 2009 #5# Harnam Kaur never succeeded to the property of her husband as Partap Singh had gifted property to his son Bagicha Singh during his life time in the year 1964. Partap Singh had also executed a registered will dated 28.8.1969 regarding his entire holding in favour of his son Bagicha Singh defendant No.1.” Further on merits also, paragraph 2 of the written statement reveals that defendant-respondent No.1 has specifically taken a plea that Partap Singh had given the suit land to defendant No.1 vide registered gift deed dated 30.3.1964 and had also executed a valid registered will dated 28.8.1969 in favour of defendant-respondent No.1. In earlier suit also, the defendant-respondent No.1 filed his written statement inter alia submitting as under: “After the death of Partap Singh, defendant No.1 succeeded to the property of Partap Singh as his son. Harnam Kaur never succeeded to the property of her husband as Partap Singh had gifted a major portion of his property to his son Bagicha Singh during his life time in the year 1964. Partap Singh had also executed a registered will dated 28.8.69 regarding his entire holding in favour of his son Bagicha Singh defendant No.1.” In these circumstances, it is apparently clear that in both the suits, defendant-respondent No.1 has taken the stand that he has become the owner of land in dispute by way of gift deed dated 30.3.1964 as well as on the basis of will dated 28.8.1969 registered on 2.9.1969. Moreover, issue No.1 of earlier suit and issue No.4 of the subsequent C.R.No.5481 of 2009 #6# suit are regarding the legality and validity of Will dated 28.8.1969 registered on 2.9.1969 executed by Partap Singh in favour of defendant No.1-Bagicha Singh are common in both the suits, which reads as under: “Issue In the earlier suit. 1. Whether the Will dated 2.9.1969 executed by Partap Singh in favour of defendant No.1 Bagicha Singh is null, void and the mutation No.5359, sanctioned on the basis of alleged will is also illegal, null and void, as alleged, if so its effect?OPP 2 to 10. xx xx xx” Issue in the subsequent suit. “1 to 3. xx xx 4. Whether Partap Singh executed the registered Will dated 28.8.1969?OPD 5 to 7. xx xx xx” A perusal of the issues reproduced hereinabove clearly reveal that issue Nos.1 and 4 are common in both the suits and as such the learned trial court has rightly ordered for clubbing of both the suits together. No doubt in the subsequent suit, there is one issue No.3 as to “whether Partap Singh gifted the suit property to defendant-respondent No.1 Bagicha Singh” but that will not make any difference rather will help in clubbing the suits. Undisputedly, issue regarding legality of will dated 28.8.1969 registered on 2.9.1969 is the material and common issue in both the suits and as such the learned trial Court, in my opinion, has rightly consolidated both the suits. Keeping in view the facts and circumstances discussed hereinabove, this Court finds no illegality or perversity in the impugned C.R.No.5481 of 2009 #7# order dated 15.6.2009 (P.1) passed by the learned Civil Judge (Jr. Division), Moga below warranting interference under Article 227 of the Constitution. Dismissed. August 16, 2011 ( JASWANT SINGH ) manoj JUDGE