C.R.No.2578 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2578 of 2011 Date of decision: 29.11.2011 Jeeto and others ...Petitioners Versus Jarnail Singh and others ... Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. D.S.Pheruman, Advocate for the petitioners. Mr. K.R.Dhawan, Advocate for the respondents. Ajay Kumar Mittal,J. 1. The plaintiff-petitioners are aggrieved by the order dated 22.1.2011 whereby the trial court had dismissed the application which had been filed by them with a prayer that DNA test of Jarnail Singh, defendant No.1 and Kulwant Kaur, defendant No.3 be conducted so as to determine whether defendant No.1 was born from the wedlock of defendant No.3 Kulwant Kaur and Dharam Singh who had expired on 6.2.1986. 2. Brief facts may be noticed. The plaintiff-petitioners filed a suit for declaration that they were owners of land to the extent of 1/7th share each of land measuring 107 kanals 6 marlas alongwith defendant Nos. 2 and 3. The defendant Nos.1 and 3 on appearance had taken the plea that Charan Kaur, mother of the plaintiffs and grand-mother of 1 C.R.No.2578 of 2011 Jarnail Singh had executed a registered Will on 17.12.1988 in favour of Jarnail Singh and Surjit Singh and further that there was a court decree dated 17.9.1990 wherein Charan Kaur had admitted execution of registered Will in favour of defendant Nos. 1 and 2. Replication was filed by the petitioners. From the pleadings of the parties, issues were framed by the trial court. Thereafter, an application was filed by the petitioners with a prayer that DNA test of Jarnail Singh, defendant No.1 and Kulwant Kaur, defendant No.3 be conducted so as to determine whether defendant No.1 was born from the wedlock of defendant No.3 Kulwant Kaur and Dharam Singh. The application was contested by the respondent Nos. 1 and 3 by filing reply. The trial court dismissed the said application vide order impugned herein. Hence this revision petition. 3. Learned counsel for the petitioners submitted that the trial court had erroneously dismissed the application as it was essential for the just decision of the case and paternity of defendant No.1 was required to be determined so that the defence taken by the defendants be falsified. Further, reference was made to Section 112 of the Indian Evidence Act also. Learned counsel for the petitioners relied upon a Division Bench judgment of the Delhi High Court in Rohit Shekhar v. Narayan Dutt Tiwari, 2010(168) DLT 326 to contend that in a case where question of paternity had to be adjudicated, the court should not have rejected the prayer for DNA test in the manner it has been done. 4. Learned counsel for the respondents on the other hand besides supporting the order passed by the trial court vehemently contended that the dispute in the present case was not relating to the question of paternity of defendant No.1. Infact, the dispute was 2 C.R.No.2578 of 2011 whether Charan Kaur had executed a registered Will dated 17.12.1988 where under defendant No.1 was the beneficiary and furthermore decree dated 17.9.1990 was a valid decree. In such a situation, the application for conducting DNA test was not only malafide and frivolous but was rightly rejected by the trial court. 5. After hearing learned counsel for the parties and perusing the record, I do not find any merit in the arguments raised by the counsel for the petitioners. It is not disputed that the plaintiffs have claimed 1/7th share each in the property of Charan Kaur and the controversy before the trial court relates to examining the validity of the registered Will dated 17.12.1988 and decree dated 17.9.1990 in favour of defendant No.1-respondent. The suit is not relating to paternity of Jarnail Singh as has been sought to be canvassed by the counsel for the petitioners and evidence can be led to prove the fact that Jarnail Singh is not the son of Dharam Singh. The trial court was, thus, right in rejecting the application with the following observations:- “8. I have given thoughtful consideration to the respective submissions of both the sides and have gone through the record on file very carefully. The contention of the applicant is that Jarnail Singh is not the son of the deceased Dharam Singh. It was argued that Kulwant Kaur is falsely claiming Jarnail Singh to be the son of the deceased Dharam Singh. It has been further argued by learned counsel for the applicant that Dharam Singh died on 6.2.1986 and that Kulwant Kaur did not conceive any child from Charan Singh and one year after the death of Dharam Singh, Kulwant Kaur came to village Fatehgarh Sabhrah Tehsil Zira with a child but infact no child was born. Kulwant Kaur and Dharam Singh remained married 3 C.R.No.2578 of 2011 for 28 years and during that period no child was born. The plaintiff now wants to get conducted the DNA test through the agency of court with direction to defendant Kulwant Kaur and Jarnail Singh to produce themselves to get conducted DNA test at PGI Chandigarh. This not a paternity suit and plaintiff can lead evidence to the effect that Jarnail Singh is not the son of Dharam Singh and Kulwant Kaur could not have conceived while Dharam Singh was alive. It is also to be noted that Dharam Singh regarding whom it has to be proved that he was natural father of Jarnail Singh is no longer alive. In view of the above discussion the application moved by the applicant is hereby dismissed without commenting on merits of the case.” 6. Referring to the judgment relied upon by the counsel for the petitioners in Rohit Shekhar’s case (supra), suffice it to notice that it being on individual fact situation involved therein does not advance their case. Section 112 of the Evidence Act deals with birth during marriage to be conclusive proof of legitimacy but it does not help the case of the petitioners at this stage in the revision petition. 7. No illegality or perversity could be pointed out in the order passed by the trial court warranting interference by this Court. 8. Finding no merit in the revision petition, the same is dismissed. November 29, 2011 (Ajay Kumar Mittal) ‘gs’ Judge 4