Civil Revision No. 6807 of 2011 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No. 6807 of 2011 Date of decision. 08.11.2011 Surender Singh Dalal and another .... Petitioners Versus Smt. Sarojini Malhotra and others ...... Respondents CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. Manjeet Singh, Advocate for the petitioners. **** Vijender Singh Malik, J. This is a revision petition brought by two of the defendants under the provisions of Article 227 of the Constitution of India praying for setting aside the order dated 08.10.2011(Annexure P-9) passed by learned Additional Civil Judge (Sr. Division), Hisar, vide which the application of the petitioners filed under Order 7 Rule 11 CPC has been dismissed. In the said suit brought by Smt. Sarojini Malhotra and Anurag Malhotra for declaration to the effect that they and the proforma defendants are owners in possession of 24/100 share of a property measuring 1409 square yards situated in Mohalla Rampura, Railway Road, Hisar and the defendants have no concern whatsoever with the same, the sale deed dated 11.02.2011 executed by defendant no.1 in Civil Revision No. 6807 of 2011 --2-- favour of defendants no. 2 and 3 is also claimed to be illegal, null and void and not binding on the rights of the plaintiffs. Defendants filed an application under Order 7 Rule 11 CPC for rejection of the plaint. It is claimed in the application that the plaintiffs have come to the court on the strength of a will regarding which probate has been issued by the court of learned District Judge, Hisar, vide judgment dated 26.3.2003. It is further claimed that the judgment delivered by the court of learned District Judge, Hisar, is in a proceeding to which the plaintiffs were party and they were not held legal heirs of late Rajinder Parshad Malhotra and it was found that the said Rajinder Parshad Malhotra had executed a will dated 11.4.1985. The suit is, therefore claimed to be barred by principle of res-judicata. The application was opposed claiming the same to be malafide, having been filed just to delay the proceedings of the case. It is claimed that apart from challenging the will in question, the suit had been filed on various grounds detailed in paras no. 5 to 19 of the plaint. It is also averred that appeal against the decision of the probate court is pending before this court, in which the validity of the will is to be decided. It is further averred that the probate court never decided the title to the property mentioned in the will and that probate court never held the plaintiffs not to be legal heirs of the deceased. It is also claimed that the suit property was not the subject matter of the probate proceedings. Claiming that question of title of the plaintiffs over the suit property can be decided by the civil court in a regular civil suit, the application is Civil Revision No. 6807 of 2011 --3-- prayed to be dismissed. Hearing learned counsel for the parties, learned Additional Civil Judge (Sr. Divn.), Hisar, has found that the decision of probate court does not operate as res-judicata to the present suit. It is also observed that probate relates to house no.19-13 while the property in suit is 19-16. Hence the application was dismissed being devoid of merits. Aggrieved by the aforesaid order, defendant nos. 2 and 3 have brought this revision petition. I have heard Shri Manjeet Singh, learned counsel for the petitioners and have gone through the record. A probate court decides the validity of the will. It does not decide the title of any party to the property mentioned therein. The decision of the probate court dated 26.3.2003 has still not become final and is pending in an appeal before this court. The only grievance of learned counsel for the petitioners against the impugned order is regarding the comment made in para no.12 of the impugned order. According to him, the probate not only relates to house no.19-13 but also relates to other houses, though not described by numbers and one of those houses is the house in question. I agree with learned counsel for the petitioners that this comment by learned Additional Civil Judge (Sr. Divn.), Hisar is unwarranted. She could not say that the other properties mentioned in the will did not have house no.19-16. Civil Revision No. 6807 of 2011 --4-- Learned counsel for the petitioners could however take no exception to the decision of learned Additional Civil Judge (Sr. Divn.), Hisar to the effect that the principle of res-judicata does not stand attracted to this suit. In these circumstances, the revision petition is found to have no merit and is dismissed with the remark that the observation made by learned Additional Civil Judge (Sr. Divn.), Hisar in para no.12 of the impugned order would not amount to a comment on the merits of the case, which would be decided after taking the evidence of the parties. 08.11.2011 (VIJENDER SINGH MALIK) dinesh JUDGE