IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1796 of 2010(O&M) Date of Decision: April 29, 2011. Premjit Kalia. ...... PETITIONER(s) Versus Santokh Singh and others. ...... RESPONDENT (s) CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. Premjit Kalia, Advocate for the petitioner. Mr. Abhinav Jain, Advocate for Mr. B.R.Mahajan, Advocate for respondents No.1 to 4. ***** RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 16.02.2010, Annexure P1 vide which learned trial Court has declined request of petitioner-plaintiff to examine handwriting and fingerprint expert to compare the signatures of Gurdial Singh, a witness on disputed agreement to sell dated 02.06.1983 with specimen signatures on a registered Will dated 05.02.1992 CR No.1796 of 2010 in favour of his sons, in order to disprove execution of agreement to sell of Bela Singh as set up by respondents-defendants. I have heard learned counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court. Facts relevant for the decision of the present revision petition are that, present petitioner-plaintiff alongwith proforma respondents filed a suit for possession of land measuring 40 Kanals 13 Marlas on the ground that their predecessor-in-interest, namely, Bela Singh was allotted this land by provincial Government who was an Ex-serviceman, in lieu of services rendered by him in the Army. The possession of the land was also delivered to him. Bela Singh had inducted contesting respondents as tenants in the said land. After death of Bela Singh, contesting respondents stopped paying rent to plaintiffs and hence, present petitioner alongwith his brothers filed an application for their ejectment in the court of Assistant Collector First Grade, Ajnala in which they denied the relationship of landlord and tenants between Bela Singh and themselves. Thereafter, the present suit was filed by present petitioner and his brothers for possession of the said land. In the written statement filed by contesting respondents they had taken the plea that on 02.06.1983 Bela Singh executed an agreement to sell the land in dispute in their favour for a consideration of `60,000/- out of which he received `40,000/- as earnest money and he also delivered the possession of the said land to them in pursuance to the said agreement and hence, plea has been taken that they are having right to protect their possession under Section 53- 2 CR No.1796 of 2010 A of the Transfer of Property Act. On pleadings of the parties the following issues were framed by learned trial Court:- “1. Whether the suit land is allotted to Bela Singh son of Maghar Singh?OPP 2. Whether plaintiff and defendants No.5 and 6 are the legal heirs of Bela Singh? 3. Whether plaintiffs are owners of the suit land? OPP 4. Whether defendant No.1 to 4 were inducted as a tenant in the suit land by Bela Singh? OPP 5. Whether plaintiffs are entitled for possession of the suit land? OPP 6. Whether the plaintiffs have no locus standi to file the suit? OPD 7. Whether the plaintiffs have no cause of action to file the present suit? OPD 8. Whether suit is within limitation? OPP 9. Whether the suit is barred under section 53-A of Transfer of Property Act? OPD 10. Whether plaintiffs are estopped by their own act and conduct to file the present suit? OPD 11. Relief.” Parties adduced evidence in support of their respective contentions. When the case was fixed for rebuttal and arguments, prayer was made on behalf of petitioner-plaintiffs to examine handwriting and fingerprint expert for comparison of the disputed signatures of a witness, namely, Gurdial Singh, on the alleged agreement to sell with his admitted signatures on the plea that the alleged agreement is forged and fabricated agreement, which was disallowed by learned trial Court mainly on the ground 3 CR No.1796 of 2010 that application was filed at a belated stage after taking two opportunities for rebuttal evidence. It has been contended by learned counsel for the petitioner- plaintiff that he wants to lead evidence in rebuttal to the evidence led by respondents-contesting defendants on Issue No.9, onus of which was upon them as they had taken the plea that they are having right to protect their possession under Section 53-A of the Transfer of Property Act as possession was delivered to them by Bela Singh –deceased pursuance to the alleged agreement. It has also been contended that no evidence in affirmative was led by petitioner-plaintiffs on this issue and that the right was reserved for adducing evidence on the issue in rebuttal to the evidence of respondents- contesting defendants. He has also placed reliance upon number of judgments of this Court on the point i.e. Pawan Kumar v. Surinder Pal andanother, 2009(3) Civil Court Cases 380, Jai Narain v. Satya Narain and others, 2008(2) Civil Court Cases 274, Ranjit Singh and Mehfil Restaurant, 2008(2) Civil Court Cases 225, Kewal Singh and Jagjit Singh, 2007(4) Civil Court Cases 658 and Punjab Kaur and others and Gurcharan Singh and others, 1992 PLJ 397. On the other hand, it has been contended by learned counsel for the respondents No.1 to 4 that petitioner-plaintiff has not reserved right for adducing evidence in rebuttal and that petitioner-plaintiff was to stand on his own legs and that he was to lead evidence in affirmative. He has also placed reliance upon Smt.Jaswant Kaur and another v. Devinder Singh and others, AIR 1983 (P&H) 210(1) and National Fertilizers Ltd. V. Municpal Committee, Bathinda, AIR 1982 (P&H) 432(1). 4 CR No.1796 of 2010 As already stated above, petitioner-plaintiff alongwith his brothers filed the suit for possession on the ground that he alongwith his brothers had inherited the property in dispute from Bela Singh –deceased and that respondents-contesting defendants were inducted as tenants by Bela Singh and however, now they are denying that they are having possession of the land in dispute as tenants under Bela Singh and rather they have set up an agreement to sell allegedly executed by Bela Singh in their favour. Petitioner-plaintiff denied the execution of the said agreement in favour of respondents-contesting defendants by Bela Singh. Onus to prove the fact that respondents-contesting defendants are in possession by virtue of the agreement to sell allegedly executed by Bela Singh and that they are having the right to protect their possession under Section 53-A of the Transfer of Property Act, was upon respondents-contesting defendants. No evidence on the point was adduced by petitioner-plaintiff in affirmative. Evidence has been adduced by respondents-contesting defendants in order to prove the alleged agreement. Hence, in view of these facts, petitioner-plaintiff is having right to lead evidence in rebuttal on the said issue onus of which was on respondents-contesting defendants. It is pertinent to reproduce Order 18 Rule 3 of Code of Civil Procedure which read as under:- “3. Evidence where several issues —Where there are several issues, the burden of proving some of which lies on the party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then 5 CR No.1796 of 2010 reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.” A plain perusal of aforementioned provision of law shows that plaintiff can lead evidence on an issue onus of which is on the other party in affirmative or he can reserve his right to adduce evidence in rebuttal to the evidence adduced by the other party. It has also been so held by Division Bench of this Court in Jaswant Kaur’s case (supra) on which reliance has been placed by learned counsel for respondents No.1 to 4. It has also been held that the said right can be reserved by petitioner-plaintiff even impliedly. The relevant paragraph of abovesaid judgment reads as under:- “13. Before parting with this judgment, the modalities of reserving the right of rebuttal also calls for some comment. It appears to me that herein also an overly strict view is not to be taken. If it is possible to necessarily imply from the mode of reservation that the right of rebuttal has been retained, then it should not be negatived, merely on the ground that it has not been so done in express terms. Cases where the party or its counsel makes the Statement that he closes his evidence in the affirmative only, would inevitably imply that rebuttal evidence may well be led and consequently such right has been reserved.” This Court has consistently held in various judgments referred to above by learned counsel for the petitioner-plaintiff that unless a party leads evidence in support of a plea raised by him in terms of the onus put on him as per the issues framed, no evidence can possibly be led by plaintiff at initial stage in anticipation of evidence to be led by the defendants. It was also held in Pawan Kumar’s case (supra) that plaintiff is entitled to lead evidence in 6 CR No.1796 of 2010 rebuttal in the form of expert witness on the issue, the onus of which was on the defendant. Hence, in view of this legal proposition and keeping in view the peculiar facts and circumstances of the case, I am of the view that learned trial Court has committed illegality and material irregularity in declining the request of petitioner-plaintiff to lead evidence in rebuttal to the evidence adduced by respondents-contesting defendants to prove issue No.9 onus of which was on respondents-contesting defendants. Hence, in view of aforementioned facts, the present revision petition is accepted. Impugned order passed by learned trial Court is set aside. However, in view of the fact that the application has been moved at a belated stage by petitioner-plaintiff, he is burdened with cost of `5,000/-. Learned trial Court is directed to allow petitioner-plaintiff to examine handwriting and fingerprint expert in rebuttal subject to payment of cost of `5,000/-, which shall be a condition precedent. Disposed of accordingly. ( RAM CHAND GUPTA ) April 29, 2011. JUDGE 'om' 7