CR No. 5097 of 2007and -1- CR No. 505 of 2008 and CR No. 6463 of 2007 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision:- 16.11.2010 CR No. 5097 of 2007 Rajinder Paul Sharma and others ......petitioners vs. Suraj Bhan and another ......respondents CR No. 505 of 2008 Rajinder Paul Sharma and others ......petitioners vs. Suraj Bhan and another ......respondents CR No. 6463 of 2007 Raj Kumar ......petitioner vs. Suraj Bhan and another ......respondents CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. Puneet Jindal, Advocate for the petitioners Mr. Rakesh Chopra, Advocate for the respondents. HEMANT GUPTA, J (ORAL) This order shall dispose of Civil Revision No. 5097 of 2007 wherein challenge is to the order dated 3.8.2006 impleading Suraj Bhan and his son Vishal Kumar as legal heir of deceased Bhagwanti-plaintiff and order dated 18.9.2007 declining the review application filed by the petitioner seeking to review the order; Civil Revision No. 505 of 2008 CR No. 5097 of 2007and -2- CR No. 505 of 2008 and CR No. 6463 of 2007 wherein the challenge is to the order dated 18.12.2007 whereby an application filed by defendant objecting the evidence to be led by the plaintiff in respect of the Will dated 24.6.1992 was dismissed; and Civil Revision No. 6463 of 2007 against the order dated 18.9.2007 passed by the learned trial Court declining an application of Raj Kumar to implead him as legal heir of Bhagwanti. The brief facts leading to the present revision petitions are that one Bhagwanti filed the suit for mandatory injunction against Rajinder Paul Sharma and his two sons Anil Kumar and Vinod Kumar. During the pendency of the suit for mandatory injunction, Bhagwanti died on 15.3.2000. The said defendants are none else but son and grand sons of the real sister of Bhagwanti namely Lajwanti who married Devi Dayal. Defendants also rely upon an oral family settlement in the year 1973 through which plaintiff-Bhagwanti gave part of her house to defendant No. 1 and the other part on the northern side in dispute to Suraj Bhan brother of defendant No. 1. Defendant No. 1 also claimed ownership by way of adverse possession since the year 1973. Defendants also relied upon the Will dated 10.1.1974 executed by the plaintiff in favour of defendant No.1 and his brother Suraj Bhan. On the basis of the pleadings of the parties, learned trial Court framed the following issues: - 1. Whether the plaintiff has not come to the Court with clean hands and has suppressed the true facts from the Hon'ble Court? OPD 2. Whether suit is barred u/o 2 rule 2 CPC and order 23 CPC?OPD 3. Whether suit is barred u/o 9 rule 8 CPC? OPD 4. Whether the plaintiff should be burdened with special costs?OPD CR No. 5097 of 2007and -3- CR No. 505 of 2008 and CR No. 6463 of 2007 5. Whether the plaintiff should be estopped by her act conduct and by her own admission?OPD 6. Whether suit is bad for non-joinder of necessary parties?OPD 7. Whether boundaries of the house are wrong?OPD 8. Whether suit is not maintainable in the present form?OPD 9. Whether plaintiff should be estopped from plea of licenses as she never stated in the previous suit?OPD 10.Whether suit is not properly valued for the purpose of Court fee and jurisdiction?OPD 11.Whether defendant has made the construction in the house as alleged by the defendant by spending the said amount?OPD 12.Whether the plaintiff made the oral family settlement in 1973 through which gave the house in dispute to the defendant as owner?OPD 13.If the above oral family settlement is not proved whether the defendant has become owner by way of adverse possession?OPD 14.Whether suit is time barred?OPD 15.Relief. When the case was fixed for the evidence of the plaintiff after the death of Bhagwanti on 15.3.2000, Suraj Bhan and Vishal Kumar filed an application on 16.5.2000 to be impleaded as legal heirs of the deceased to continue with the suit. Such application was allowed by trial Court on 14.3.2001 on the basis of the Will dated 24.6.1992. It may be stated that Suraj Bhan is also the son of Lajwanti sister of Bhagwanti and real brother of Rajinder Paul, defendant No. 1. Vishal Kumar is son of Suraj Bhan. The said order passed by learned trial Court was challenged by defendant No. 1 before this Court in Civil Revision No. 1566 of 2001. The said revision was allowed on 28.5.2005 whereby this Court directed an enquiry in terms of the order 22 Rule 5 of the Code of Civil Procedure in respect of rights of legal heirs to continue with the suit. After the said order was passed, learned trial CR No. 5097 of 2007and -4- CR No. 505 of 2008 and CR No. 6463 of 2007 Court framed the following issues vide order dated 8.11.2005:- 1. Whether the applicant Suraj Bhan is required to be impleaded L.R. of the plaintiff on the basis of adoption?OPA 2. Whether applicant Vishal Kumar is required to be impleaded as L.R. of the plaintiff on the basis of registered Will allegedly executed in his favour by Bhagwanti on 24.6.1992?OPA. After recording of the evidence on such issues, learned trial Court vide order dated 3.8.2006 allowed the application filed by Suraj Bhan and Vishal Kumar and also observed that the question whether the adoption of Suraj Bhan by Bhagwanti and her husband Permanand was legal or not; whether Smt. Bhagwanti executed the registered Will on 24.6.1992 in favour of Vishal Kumar son of Suraj Bhan and whether Bhagwanti has executed the Will on 10.1.1974 in favour of her nephews Rajinder Paul and Suraj Bhan is to be decided in the main suit. Subsequently, an application filed by defendant for review of the said order was also dismissed on 18.9.2007. The order dated 3.8.2006 and 18.9.2007 are challenged by defendant in Civil Revision No. 5097 of 2007. The evidence being led by the plaintiff was disputed by defendants. An application filed by defendants was declined on 18.12.2007. Such order is the subject matter of challenge in Civil Revision No. 505 of 2008 as mentioned above. Challenge in Civil Revision No. 6463 of 2007 is to an application filed by Raj Kumar claiming the estate of Bhagwanti as her legal heir. I have heard learned counsel for the parties and find that the orders passed by learned trial Court on 3.8.2006 and 18.9.2007 can not be sustained in its entirety. While impleading the legal heirs of a deceased- plaintiff, the issue is required to be examined in a summary manner. The CR No. 5097 of 2007and -5- CR No. 505 of 2008 and CR No. 6463 of 2007 findings in such enquiry under Order 22 Rule 5 of the Code of Civil Procedure are summary in nature and do not operate as res judicata in any subsequent proceeding as has been held by Full Bench judgment in AIR 1981 P and H 131 Mohinder Kaur and another vs. Piara Singh and others Since, Bhagwanti has filed the suit for mandatory injunction, the right of Bhagwanti to claim possession from the defendants is to be examined in the present suit. The civil Court is called upon to decide the issues as mentioned above framed on 10.2.1996 but the dispute regarding the estate of Bhagwanti on the basis of the Will dated 24.6.1992 in favour of Vishal Kumar or Will dated 11.1.1974 in favour of Rajinder Paul and Suraj Bhan or the fact whether Suraj Bhan has been adopted by Bhagwanti is to be decided in a separate suit in respect of the estate of Bhagwanti. The issues as reproduced above including the issue whether Rajinder Paul, defendant No. 1 is the licensee or he has got the property in dispute by way of a family settlement or his possession is that of a person who is in an adverse possession above are required to be examined in the present suit. Raj Kumar who claims the estate of Bhagwanti, has since died as informed by Mr. Nitin Kumar, learned counsel for the petitioner-Raj Kumar. The said Raj Kumar is the son of another sister of Bhagwanti namely Punni Devi. Even the said question whether the estate of Bhagwanti would be inherited by her nephews including Raj kumar is required to be decided in a separate suit. The claim of the LRs of Raj kumar having any interest in the estate of Bhagwanti would be required as and when such proceedings are initiated by any of the legal heirs of the deceased, CR No. 5097 of 2007and -6- CR No. 505 of 2008 and CR No. 6463 of 2007 Bhagwanti. But the issue in the present suit as mentioned above is whether the defendants are the licensee as claimed by Bhagwanti or the defendants are in possession in terms of the family settlement or in adverse possession. In view of the above, the order dated 3.8.2006 passed by learned trial Court is modified by setting aside. The order dated 18.12.2007 is also set aside whereby the plaintiff was permitted to lead evidence on the issue of Will dated 24.6.1992. However, the plaintiff is entitled to lead such evidence as is considered necessary and appropriate including the examination of an expert witness to prove the plaint. With the said direction, revision petitions stand disposed of. (HEMANT GUPTA) JUDGE 16.11.2010 preeti