Regular Second Appeal No. 2043 of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2043 of 2007 Date of decision : May 11, 2010 Gurcharan Singh and another ....Appellants versus Gurdarshan Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Ms. Gagan Preet Kaur, Advocate for Mr. BR Mahajan, Advocate, for the appellants Mr. Saurav Khurana, Advocate, for respondents no. 1 to 3 & 8 Mr. Om Pal Sharma, Advocate for Mr. PK Longia, Advocate, for respondents no. 4,5, 9 to 11 13 to 16 and LRs of respondent no. 7 Ms. Jyoti Chaudhary, Advocate also for respondents no. 9 to 11 L.N. Mittal, J. (Oral) Plaintiffs have filed instant second appeal having remained unsuccessful in both the courts below. Plaintiffs filed suit seeking declaration that plaintiffs and defendants no. 1 to 5 have inherited in equal shares the suit property left behind by Rakha Ram since deceased in view of registered Will dated 22.5.1979. The plaintiffs also alleged that Wills dated 7.12.1995 and 29.5.1996 allegedly executed by Rakha Ram are null and void. Regular Second Appeal No. 2043 of 2007 -2- Contesting defendants no. 1 to 3 did not dispute the execution of Will dated 22.5.1979 as set up by the plaintiffs but pleaded that Rakha Ram also executed Wills dated 7.12.1995 and 29.5.1996. It was alleged that vide last Will dated 29.5.1996, previous two Wills dated 22.5.1979 and 7.12.1995 were cancelled. Following issues were framed on the pleadings of the parties:- “1. Whether the plaintiff is entitled to the declaration to the effect that the plaintiffs and defendants no. 1 and 2, defendants no. 4 & 5 and defendants no. 1, 2 and 3 have inherited equal shares in the suit property by the operation of Will dated 22.5.79? OPP. 2. Whether the plaintiff is entitled to the declaration that the Wills dated 7.12.95 and 22.5.96 alleged to be executed by Rakha Ram are null, void and illegal documents ? OPP 3. Whether the plaintiff is entitled to the injunction as prayed for ? OPP 4. Whether the suit of the plaintiff is not maintainable ? OPD 5. Whether the suit is bad for mis-joinder and non-joinder of necessary parties ?OPD 6. Whether the plaintiffs have no locus standi to file the suit ? OPD 7. Relief.” Both the plaintiffs stepped into witness box and tendered their affidavits in examination in chief but did not appear for cross examination in spite of many opportunities nor led any other evidence. Consequently, evidence of the plaintiffs was closed by court order. The defendants did not led any evidence in support of their case. Learned Civil Judge (Junior Division), Amritsar vide judgment Regular Second Appeal No. 2043 of 2007 -3- and decree dated 16.2.2006 dismissed plaintiffs' suit observing that onus of issues no. 1 to 3 was on the plaintiffs and since they failed to lead any evidence, the said issues were decided against the plaintiffs. Issues no. 4 to 6 were decided against the contesting defendants as they also failed to lead any evidence. In conclusion suit was dismissed. First appeal preferred by the plaintiffs has also been dismissed by learned Additional District Judge, Amritsar on the same ground. Feeling aggrieved, the plaintiffs preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that the defendants failed to prove Will dated 7.12.1995 and 29.5.1996 by leading any evidence whatsoever and therefore, the plaintiffs' suit could not have been dismissed when Will dated 22.5.1979 on the basis of which the plaintiffs made their claim was not disputed. On the other hand, learned counsel for the respondents vehemently contended that since the plaintiffs failed to lead any evidence, their suit has been rightly dismissed. It was also contended that Will dated 29.5.1996 is registered one and therefore, the said Will in favour of defendants no. 1 to 3 stands established. I have carefully considered the rival contentions. Following substantial question of law arises for determination in the instant second appeal :- “Whether issue no. 2 has been rightly framed and onus thereof has been rightly placed on the plaintiffs ? Regular Second Appeal No. 2043 of 2007 -4- Contesting defendants have pleaded that the deceased had executed Wills dated 7.12.1995 and 29.5.1996 whereas the plaintiffs alleged that the said Wills are null and void and were not executed by deceased Rakha Ram. In this view of the matter, the issue should have been framed as to whether deceased Rakha Ram executed the aforesaid two Wills dated 7.12.1995 and 29.5.1996 and onus of the said issue should have been upon the defendants who set up the said Wills in the written statement. Only thereafter the plaintiffs could be called upon to depict that the said Wills were null and void. The plaintiffs have been non-suited without requiring the defendants to prove the Wills set up by them whereas the Will set up by the plaintiffs i.e. Will dated 22.5.1979 has not been disputed by the contesting defendants and the said Will even finds mention in Will dated 29.5.1996 set up by the contesting defendants themselves. From the aforesaid, it is apparent that the issues were not correctly framed and onus of the issues was not correctly laid on the parties and it has resulted in great prejudice to the plaintiffs and miscarriage of justice. In view of the aforesaid, in place of issue no. 2, following issue is framed for adjudication :- “Whether Rakha Ram executed Wills dated 7.12.1995 and 29.5.1996 ? If so to what effect ? OPD” In view of reframing of issue no. 2 as aforesaid, the case has to be remanded to the trial court to afford opportunity to lead evidence to the parties. Accordingly, the instant second appeal is allowed and judgments and decrees of the both the courts below are set aside and the suit is Regular Second Appeal No. 2043 of 2007 -5- remanded to the trial court for fresh decision in accordance with law. Initially opportunity shall be given to contesting defendants to lead evidence including evidence on reframed issue no. 2. Thereafter the plaintiffs shall be granted opportunity to lead rebuttal evidence relating to the issues the onus of which is on the defendants. However, the plaintiffs shall not be entitled to lead affirmative evidence because opportunity for the same has already been allowed to them, but they failed to lead any evidence. Records of the courts below be sent back at once. Parties are directed to appear before the trial court on 28.5.2010. The trial court shall decide the suit expeditiously as the suit is of the year 1997. ( L.N. Mittal ) May 11, 2010 Judge 'dalbir'