CR No. 6782 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No. 6782 of 2009 (O&M) Date of decision:- 28.03.2011 Ram Lal Tantia ....Petitioner Vs. Vijay Kumar and others ....Respondents CORAM: HON'BLE MR. JUSTICE A.N. JINDAL ****** Present:- Mr. Suman Jain, Advocate, for the petitioner. Mr. Sandeep Khunger, Advocate, for the respondents. A.N. JINDAL, J (ORAL) This petition assails the order dated 01.05.2009 passed by the Additional Civil Judge (Senior Division), Fazilka, whereby the application filed by the plaintiff-petitioner (hereinafter referred to as 'the petitioner') for withdrawal of the suit with permission to file a fresh suit on the same cause of action, was dismissed. The factual background of the case is that late Smt. Geeta Devi widow of Shri Krishan was owner in possession of the land measuring 1182 Kanals, 15 Marlas, as fully detailed in the heading of the plaint. The petitioner, while claiming himself to be the adopted son of Aai Daan, filed a suit for declaration to the effect that he is owner of the property and the Will dated 14.02.1971 is false, fabricated and void document. The petitioner also claimed the relief for permanent injunction restraining the CR No. 6782 of 2009 (O&M) 2 defendants-respondents (hereinafter referred to as 'the respondents') from alienating the suit land in any manner whatsoever by asserting themselves to be the owners of the land in question. This suit, filed in the year 1998, when reached the culmination, the petitioner moved an application on 17.12.2008 for withdrawal of the suit with permission to file a fresh suit on the same cause of action, on the grounds that while filing the suit, the petitioner could not press/claim the relief of possession and he had not specifically challenged the mutation No.908 and the persons as mentioned in the copy of the Jamabandi being other co-sharers, could not be arrayed as parties inadvertently and all these facts were formal in nature and the suit was likely to fail on these grounds. In reply to the application, the respondents submitted that no such defects have been pointed out, on account of which, the suit was likely to fail. The respondents claimed that the application is malafide and the petitioner need not to have challenged the mutation qua the estate of Geeta Devi, as he had already challenged the Will dated 14.02.1971 executed by her in favour of the respondents and the mutation was sanctioned on the basis of of the said Will. The other co-sharers in the property would not be necessary parties. Thus, the respondents prayed for dismissal of the application. The application for withdrawal of the suit, filed by the petitioner, was declined. Arguments heard. The request for withdrawal of the suit with permission to file fresh one has been made on three grounds, viz a viz (i) the petitioner has not specifically challenged the mutation No.908; (ii) CR No. 6782 of 2009 (O&M) 3 he has not arrayed the other co-sharers in the suit land as defendants; (iii) the petitioner could not set up the plea with regard to possession of the suit land. Having pondered the above said contentions, it may be observed that since the Will dated 14.02.1971 has already been challenged by the petitioner, therefore, there was no necessity to challenge the mutation No.908, which was sanctioned on the basis of the said Will. The mutation proceedings are summary in nature and would follow the events occurring on conclusion of the trial. In other words, if the Will is set aside and the petitioner is held to be the owner of the suit property, then certainly the mutation, which is a paper transaction to be maintained by the revenue authorities for keeping the record up to date, is bound to be corrected. Secondly, the petitioner has claimed relief on the basis of adoption against the respondents. The dispute is with regard to the legal heirship and the Will and other co-sharers have nothing to do with the suit. As such, they are not necessary parties. As regards the third ground that the petitioner could not plead to claim relief of possession, it may be observed that Jamabandi for the year 1993-94 reveals that except for small part of the suit land comprised in Khatauni No.762 measuring 6 Kanals 13 Marlas, the suit property is recorded to be ownership and possession of the petitioner alongwith the respondents, whereas the other part of the suit land is nowhere recorded to be in possession of the respondents to the exclusion of the petitioners. These documents were in the notice of the petitioner at the time of filing the suit. In any way, the petitioner has claimed himself to be a co-sharer in the property and CR No. 6782 of 2009 (O&M) 4 inheritance of Geeta Devi has been claimed. At the same time, I was apprised that the petitioner has already moved an application for amendment of the plaint in order to seek the relief of possession. If while going to the worst, it is observed that the petitioner succeeds to establish his right and the Court finds it handicapped to grant him further relief of possession, then the Court could pass appropriate order while allowing the amendment qua relief of possession. As a matter of fact, now after the lapse of 11 years since the suit has been filed, both the parties have already led evidence and the case is fixed for rebuttal and arguments, the respondents would be seriously prejudiced if the petitioner is permitted to withdraw the suit with permission to file a fresh suit on the same cause of action. In other words, it would amount to re-opening of the suit and it will take another 11 years for trial, which should be discouraged. Learned counsel for the petitioner has failed to point out any illegality in the impugned order, therefore, this Court would be reluctant to interfere in the said order at this revisional stage. No grounds to interfere. Dismissed. (A.N.JINDAL) 28th of March, 2011 JUDGE ajp