C.R.No.1041 of 2008 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.1041 of 2008. Decided on July 28, 2009. Jai Bhagwan. .. Petitioner VERSUS Jai Karan and others. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI PRESENT Kr.Satbir Singh, Advocate, for the petitioner. Mr.Surender Saini, Advocate, for the respondens. M.M.S. BEDI, J. (ORAL) Plaintiff Jai Bhagwan has filed a suit for declaration and injunction that after the death of his father Puran Singh, the property left by him would be owned by all his heirs whereas the validity of a Will dated 11.12.1997, in favour of defendant-respondent No.1, has also been challenged which has resulted in the framing of following two issues: - 1) Whether the Will dated 11.12.1997, in favour of defendant No.1 is null and void and having no effect on ...1 C.R.No.1041 of 2008 the rights of natural heirs of Pooran?OPP. 2) Whether the suit property devolves on the plaintiff and defendants No.2 to 6 according to natural Succession?OPP. Vide impugned order, an application filed by the plaintiff-petitioner to lead rebuttal evidence after the closing of evidence in affirmative and the evidence of the defendants, has been dismissed on the ground that the plaintiff has already availed several opportunities to conclude his evidence and the oral evidence of the plaintiff has been closed in affirmative and production of documentary evidence of the plaintiff has also been closed by the plaintiff. The trial Court formed an opinion that the defendant- respondent No.1, has also stated that the alleged Will is not in his possession and the burden of proof to establish the Will is on the plaintiff and not on defendant no.1, as such, the plaintiff cannot be permitted to adduce evidence in rebuttal. Counsel for the petitioner has contended that the defendants-respondents have got mutation entries made regarding the inheritance of property of Pooran, on the basis of a Will dated 11.12.1997, alleged to have been executed in favour of defendant No.1, jeopardizing the civil rights of the plaintiff-petitioner which compelled him to file a suit for declaration and injunction for establishing his legal rights in the property left by Pooran. A heavy onus lay upon the defendant-respondent, in such circumstances, to ...2 C.R.No.1041 of 2008 establish his rights on the basis of the Will dated 11.12.1997. The trial Court has not framed the issues properly and the onus to establish the Will lies upon a person who propounds the Will in his favour. The rights of defendants-respondents have been claimed by defendant-respondent no.1, on the basis of the alleged Will. Though he has not led any evidence to prove the Will, but the right of the plaintiff cannot be prejudiced to establish the illegality of the Will dated 11.12.1997. I have heard counsel for the petitioner as well as counsel for the respondents. Seen technically, the petitioner-plaintiff cannot be permitted to lead rebuttal evidence as the onus of issue No.1 mentioned hereinabove has been put on the plaintiff but examining minutely and taking into consideration the rights of the plaintiff and defendants, it appears that the plaintiff seeks right in the property on the basis of natural succession whereas the defendant-respondent No.1, wants to defeat the rights of the plaintiff on the basis of the Will dated 11.12.1997, alleged to have been executed in his favour by Pooran. As per Section 102 of the Evidence Act, the burden of proof in a suit lies on that person who would fail if no evidence at all were given on either side. In the present case, if the defendants failed to produce any evidence regarding the Will dated 11.12.1997, their claim on the basis of the Will dated 11.12.1997, would fail and it ...3 C.R.No.1041 of 2008 might result in the success of the claim of the plaintiff-petitioner. The onus placed upon the plaintiff regarding issue No.1 is not the sole determining factor to find out whether the plaintiff can be permitted to produce the rebuttal evidence. The initial onus to establish the Will is on the defendants. In case sufficient evidence would have been produced regarding the Will, the plaintiff himself have got an opportunity to rebut the evidence produced. Prima facie, it is apparent, that the trial Court has not fixed onus upon the defendants to prove the Will which has resulted in the impugned order. The impugned order dated 31.10.2007, declining the plaintiff an opportunity to produce the evidence to rebut the Will is hereby set aside and it is ordered that the plaintiff will be given one opportunity to produce evidence to rebut the Will dated 11.12.1997, subject to payment of costs of Rs.1000/- to the defendants. Parties are directed to appear before the Trial Court on the next date of hearing fixed before it. It is made clear that in case the plaintiff fails to produce the evidence on the next date of hearing or any date fixed by the trial Court, this petition will be deemed to have been dismissed and he will not be entitled to lead any other evidence. Disposed of. (M.M.S.BEDI) JUDGE July 28, 2009. rka ...4