Kanchan Devi Pincha vs Prasann Chandara Pincha
2023 Latest Caselaw 4523 Raj

[2023/RJJD/013356]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2890/2021

Prasann Chandra Pincha S/o Moochand Pincha, Aged About 66 Years, R/o Ward 27, Sardarshahar, Distt. Churu Presently Residing At House No 344/88, 18Th Cross 16Th Main, MRC Layout, Vijay Nagar, Banglore.

----Petitioner Versus

1. Kanchan Devi W/o Late Bherudan Oswal, R/o Station Road (J.B. Road) Sujangarh, Distt. Churu. (deleted vide order dated 08.04.2021)

2. Parbhat Kumar Pincha S/o Late Bherudan Oswal, R/o Station Road (J.B. Road) Sujangarh, Distt. Churu.

3. Saroj D/o Chandanmal Baid, R/o K-15, Malviya Nagar , C Scheme, Jaipur.

4. Manju D/o Chandanmal Baid, R/o K-15, Malviya Nagar , C Scheme , Jaipur .

5. Chandradeep S/o Chandanmal Baid, R/o K-15, Malviya Nagar , C Scheme , Jaipur .

6. Late Prabha, D/o Deepchand Nahata Through - 6/1 Deepak Daga, R/o Neelkanth Building, 27 B, Camack Str.

Kolkata (WB) 6/2 Saurav Daga, R/o Neelkanth Building, 27 B, Camack Str.

Kolkata (Wb) 6/3 Sangeeta Daga, R/o Neelkanth Building, 27 B, Camack Str. Kolkata (Wb)

7. Sudha D/o Deepchand Nahata, R/o B-13, Bhawani Singh Marg , C Scheme , Jaipur

8. Meeta D/o Deepchand Nahata., R/o B-13, Bhawani Singh Marg , C Scheme , Jaipur

9. Ajay Kumar S/o Deepchand Nahata, R/o B-13, Bhawani Singh Marg , C Scheme , Jaipur

10. Late Indurani Kothari, W/o Padamchand Kothari R/o Nagaur Through-

10/1 Padamchand Kothari S/o Ghasilal Kothari, R/o Nagaur. 10/2 Prateek Kothari S/o Padamchand Kothari, R/o Nagaur.

[2023/RJJD/013356] (2 of 10) [CW-2890/2021]

10/3 Roopadevi Gidiya D/o Padamchand Kothari, W/o Umaid Singh Gidiya, R/o Rajaldesar, Tehsil Ratangarh, District Churu.

10/4 Sona Devi Bhootoriya D/o Padamchand Kothari, W/o Narendra Bhootoriya, R/o Ladnu, District Nagaur.

11. Dr. Chandrasekhar Baid S/o Chandanmal Baid, R/o House No. 15, Malviya Marg, C Scheme, Jaipur.

----Respondents Connected With S.B. Civil Writ Petition No. 2147/2021

1. Kanchan Devi Pincha W/o Late Bherudan, Aged About 87 Years, B/c Oswal, Resident Of Sujangarh, Tehsil Sujangarh, District Churu

2. Prabhat Pincha S/o Late Bherudan, Aged About 53 Years, B/c Oswal, Resident Of Sujangarh, Tehsil Sujangarh, District Churu

----Petitioners Versus

1. Prasann Chandara Pincha S/o Moolchand, B/c Oswal, Resident Of Sardarshahar, District Churu At Present H.no.344/88, 18Th Cross, 16Th Main Mr.c. Layout, Vijay Nagar, Bangaloare-560040 (Karnataka)

2. Dr. Chandrashekhar Baid S/o Chandan Mal Baid, H.no.15, Malviya Marg, C Scheme, Jaipur (Raj)

3. Padam Chand Kothari S/o Ghasi Lal Kothari, B/c Oswal, Resident Of Nagaur.

4. Prateek Kothari S/o Padam Chand, B/c Oswal, Resident Of Nagaur

5. Smt. Roopa Devi D/o Padam Chand, B/c Oswal, R/o Rajaldesar, Teh. Ratangarh

6. Smt. Sona Devi D/o Padam Chand, B/c Oswal, Resident Of Ladnu, District Nagaur

7. Smt. Saroj D/o Chandan Mal Baid, H.no.15, Malviya Marg, C Scheme, Jaipur

8. Smt. Manju D/o Chandan Mal Baid, H.no.15, Malviya Marg, C Scheme, Jaipur

[2023/RJJD/013356] (3 of 10) [CW-2890/2021]

9. Chandra Deep S/o Chandan Mal Bai, H.no.15, Malviya Marg, C Scheme, Jaipur

10. Deepak Kumar Spouse/o Smt. Prabha, Neelkanth Building, 27-B, Kemak Street, Kolkata (W.b.)

11. Saurav S/o Deepak Kumar, Neelkanth Building, 27-B, Kemak Street, Kolkata (W.b.)

12. Sangeeta D/o Deepak, Neelkanth Building, 27-B, Kemak Street, Kolkata (W.b.)

13. Smt. Sudha D/o Deepchand Nahta, H.no.b-13, Bhawani Singh Marg, C Scheme, Jaipur

14. Smt. Meeta D/o Deepchand Nahta, H.no.b-13, Bhawani Singh Marg, C Scheme, Jaipur

15. Ajay Kumar S/o Deepchand Nahta, H.no.b-13, Bhawani Singh Marg, C Scheme, Jaipur

----Respondents

For Petitioner(s) : Mr. Manish Shishodia, Sr. Advocate with Mr. Anirudh Khatri For Respondent(s) : Mr. Abhinav Jain

HON'BLE DR. JUSTICE NUPUR BHATI

Order

Order reserved on : 02/05/2023 Order pronounced on : 12/05/2023

(1) Since common questions of facts and law are involved in

both these writ petitions, therefore, the same were heard together

and are disposed of by this common order.

(2) These petitions have been filed challenging the order dated

22.01.2021 (in SBCWP No.2890/2021) and the order dated

21.08.2019 (in SBCWP No.2147/2021) passed by the learned

Additional District Judge, Churu in Civil Original Suit No.37/2004

(23/1999).

[2023/RJJD/013356] (4 of 10) [CW-2890/2021]

SBCWP No.2890/2021 has been filed with the following

prayers:-

"(a) The impugned order dated 22.01.2021 (Annex.7) passed by learned Additional District Judge, Churu in civil original suit no.37/2004 (23/1999) may kindly be quashed set aside so as to dismiss the respondent/plaintiff's application in toto.

(b) Any other order or direction which the Hon'ble Court feels appropriate in favour of the petitioners in light of justice, equity and good conscience may also be passed."

SBCWP No.2147/2021 has been filed with the following

prayers:-

"(A) The impugn order dated 21.08.2019 (Annexure-6) passed by the Court of Additional District & Sessions Judge, Chutu in Sessions Case no.23/1999 (26/2008) be quashed and set aside; and

(B) The Application of the non-petitioner No.1 (Annexure-4) may kindly be dismissed with costs throughout; and

(C) That without prejudice to the aforementioned, if the Hon'ble Court comes to the conclusion to allow the application of the Non-petitioners/uphold the impugn order Annexure-6, then the humble petitioners may be permitted to lead ocular and documentary evidence on the newly framed issue; and

(D) Any other appropriate order or direction the Hon'ble Court deems just and proper be passed in favour of the petitioner."

(3) The facts of the case in brief are that plaintiffs Kanchan Devi

(deceased) and Prabhat Kumar Pincha (respondents Nos.1 and 2

in SBCWP No.2890/2021 and petitioners in SBCWP No.2147/2021)

(hereinafter referred to as 'the plaintiffs') filed a suit for

declaration and injunction against the defendants (including

Prasann Kumar, petitioner in SBCWP No.2890/2021 and

[2023/RJJD/013356] (5 of 10) [CW-2890/2021]

respondent No.1 in SBCWP No.2147/2021) (hereinafter referred to

as 'the defendant No.1). It was stated in the plaint that there is a

residential haveli situated in Sardarshahar having Patta No.26

dated 13.01.1954 issued in favour of one Shri Hamir Mal S/o Shri

Sujan Mal and Shri Bheru Dan S/o Shri Hamir Mal and the same

was in use and in possession of the plaintiffs and the defendants

Nos.1 and 2 were having no right, title or possession over the

same. It was stated in the plaint that said Shri Bheru Dan was

married with plaintiff Smt. Kanchan Devi (deceased) and out of

their wedlock a daughter Smt. Indu Rani and a son Balisht Kumar

were born. Shri Balisht Kumar died on 09.02.1968. Therefore,

plaintiff Smt. Kanchan Devi adopted plaintiff Prabhat (son of her

daughter Smt. Indu Rani) as per the Hindu rites and customs. It

was alleged in the plaint that the said haveli was in the joint

names of Shri Hamir Mal and Shri Bheru Dan and upon death of

Shri Bheru Dan, who expired on 03.03.1957, plaintiff Smt.

Kanchan Devi succeeded the share of Shri Bheru Dan in the haveli

as per the provisions of Hindu Succession Act, 1956.

(4) It was further alleged in the plaint that Shri Hamir Mal

transferred his share during his lifetime by executing a

Tamleeknama dated 17.03.1966 in favour of his wife Smt. Laxmi

Devi Pincha and Shri Balishth Kumar Pincha. However, the

Tamleeknama, executed by Shri Hamir Mal, was in respect of of

the entire property, whereas Shri Bheru Dan had half share in the

said property and, therefore, on account of his death, his share

vested in the plaintiff Smt. Kanchan Devi and since Smt. Laxmi

Devi Pincha (w/o Shri Hamir Mal) died intestate, therefore, after

her death (on 17.01.1977) the property devolved upon the Class I

[2023/RJJD/013356] (6 of 10) [CW-2890/2021]

heirs. It was also alleged that the defendants and son-in-laws,

namely, Chandamal Baid and Deepchand Nahta, in conspiracy, got

executed a 'Will' on 16.07.1998 by Shri Hamir Mal, without his will

and consent.

(5) The defendants Nos.1 and 2 and proforma defendant No.3 in

the suit filed their written statement.

(6) The learned trial Court, based on the pleadings of the

parties, framed as many as 15 issues. Thereafter, the suit was

kept for evidence of the parties and after leading of evidence, the

suit was kept for final arguments. Thereafter, the defendant

Prasann Kumar filed an application under Order 14 Rule 5 of the

Code of Civil Procedure on 24.07.2019 for framing an additional

issue to which reply was filed. The learned trial Court, vide order

dated 21.08.2019, allowed the same and framed a new issue

No.1A as under:-

"D;k izHkkr dqekj dapu nsoh dk xksn iq= gSA"

(7) The plaintiffs also filed an application under Order 7 Rule 14

of the Code of Civil Procedure on 14.01.2021 seeking to produce

some documents so as to lead evidence in respect of the newly

framed issue No.1A to which reply was filed by the defendants.

The learned trial Court, vide order dated 22.01.2021, allowed the

same.

(8) Therefore, the defendants have preferred SBCWP

No.2890/2021 being aggrieved of the order dated 22.01.2021,

whereby application for taking additional documents filed by the

plaintiffs has been allowed and the plaintiffs have preferred

SBCWP No.2147/2021, being aggrieved of the order dated

[2023/RJJD/013356] (7 of 10) [CW-2890/2021]

21.08.2019 whereby the application for framing additional issue

filed by the defendant No.1 has been allowed.

S.B. Civil Writ Petition No.2147/2021

(9) Shri Abhinav Jain, learned counsel appearing for the

petitioners, submitted that the learned trial Court has allowed the

application and framed the impugned additional issue No.1A,

without taking into account the nature of the suit, which was filed

for declaration of the Will as forged and fabricated and non-est as

Shri Hamir Mal had already executed a tamleeknama during his

lifetime in favour of his wife and grand-son prior to execution of

the alleged Will.

(10) Learned counsel for the petitioner further submitted that

there was no specific pleading about the adoption and without

there being any specific pleadings, the issue with regard to the

same could not have been framed as the same would amount to

change of nature of the suit. He submits that by filing merely an

application, the defendants want to change the nature of the suit.

They have not filed any counter-claim. The defendants have

neither claimed to declare the adoption as null and void nor any

relief has been sought by them in this regard.

(11) Learned Senior Counsel Shri Manish Shishodia, assisted by

Shri Anirudh Khatri, appearing for the respondents, submitted that

the suit has been filed on the basis of the adoption of plaintiff No.2

Prabhat Kumar and evidence has been led in this respect,

therefore, the impugned issue sought to be raised was necessary

and proper to decide the controversy in the suit.

(12) Learned counsel for the respondents further submitted that

the plaintiffs Kanchan Devi and Prabhat Kumar have mentioned

[2023/RJJD/013356] (8 of 10) [CW-2890/2021]

about the facts regarding adoption in the affidavit and they have

been cross-examined. Similarly, defendant Prasann Chandra has

mentioned in his affidavit that plaintiff Prabhat Kumar is not the

adopted son of Kanchan Devi. Both the parties have led their

evidence and have been cross-examined but issue in this regard

has not been framed.

(13) He also submitted that issue can be framed at any stage. It

is submitted that arguments in this respect have not yet been

made. It is the defence of the defendant that Prabhat Kumar is

not the adopted son, therefore, it is necessary to frame the

additional issue.

(14) Heard learned counsel for the parties and perused the

material available on record.

(15) The plaintiff, being the dominus litis, enjoys a free hand in

couching the relief clauses in the manner he pleases. Here, in the

instant, the relief sought four in the suit is as under:-

"(v) oknhx.k rFkk xkS.k izfroknh la[;k 3 dks oknxr lEirh okds ljnkj"kgj ftlds vkls ikls ok {ks=Qy nkos ds iSjk la[;k 2 esa ntZ gS] dks oknhx.k rFkk xkS.k izfroknh la[;k 3 dh fefYd;rh] dCtk] mi;ksx&miHkksx dh lEirh gksuk U;k;ky; }kjk ?kksf'kr fd;k tkosA

(c) U;k;ky; }kjk fookfnr bPNki= fnukad 16&07&1998 dks >wBk] QthZ] f[kykQ dkuwu] izHkkoghu] "kwU; vkSj csvlj ?

kksf'kr fd;k tkdj ;g Hkh ?kksf'kr fd;k tkos fd mDr bPNk i= oknhx.k rFkk xkS.k izfroknh la[;k 3 ik ckbZf.Max ugha gS rFkk ;g Hkh ?kksf'kr fd;k tkos fd fookfnr bPNki= fnukad 16&07&1998 ds rgr izfroknhx.k oknxr lEifr ds ekfyd ugha gS vkSj ;g Hkh ?kksf'kr fd;k tkos fd oknxr lEifr es izfroknhx.k la[;k 1 o 2 fookfnr bPNk i= ds rgr dksbZ ykHk izkIr djus dh gdnkj ugha gSA fookfnr bPNk i= fnukad 16&07&1998 dks "kwU; vkSj csvlj ?kksf'kr fd;k tkosA

[2023/RJJD/013356] (9 of 10) [CW-2890/2021]

(l) izfroknh la[;k 1 rFkk 2 dks tfj;s fpjfu'ks/kkKk U;k;ky; }kjk vuq"kkafxd :i ls jksdk tkos fd oks fookfnr bPNki= fnukad 16&07&1998 dks dgha ij ;k fdlh Hkh dk;Z ds fy, mi;ksx esa ugha ysos] mldk dksbZ izkscsV izek.k i- vFkok ysVj vkWQ ,MfefuLVzs"ku vFkok mrjkf/kdkj izek.k i= izkIr ugha djs] mDr fookfnr bPNk i= ds rgr dksbZ Hkh ykHk izkIr ugha djs] fookfnr gosyh e; ck[ky ;k uksgjk ij tcju dCtk ugha djs] rksM&QksM ughas djs] uo fuekZ. ugha djkos] vUnj izos"k ugha djs] oknhx.k rFkk xkS.k izfroknhx.k la[;k 3 dks csn[ky ugha djs] oknxr leifr ds fdlh Hkh fgLls dh fcdzh] jgu] c["kh"k ds }kjk gLrkUrfjr ugha djs vkSj u dksbZ ,slk dk;Z djs vFkok vU; fdlh ls djkos fd ftlls oknhx.k ;k xkS.k izfroknh la[;k 3 ds dkuwuh vf/kdkjksa] lq[k lqfo/kkvksa rFkk mi;ksx&miHkksx o ekydkuk dCtk esa dksbZ foifjr izHkko iMrk gksA

(n) oknhx.k dks nkos dk lEiw.kZ [kPkkZ izfroknhx.k la[;k 1 rFkk 2 ls fnyk;k tkosA

(p) vU; dksbZ U;k;ksfpr vkKk tks U;k; fgr esa t:jh gks oknhx.k dks fnykbZ tkosA"

Thus, the main relief sought by the plaintiff was challenge to

the Will dated 16.07.1998. If the defendant wants to question the

adoption of the plaintiff No.1, then he had a remedy available and

can file a separate suit for the same. In the suit pending before

the learned Additional District Judge, Churu, the application filed

under Order 14 Rule 5 of the Code of Civil Procedure for addition

of issue "D;k izHkkr dqekj dapu nsoh dk xksn iq= gS\" amounts to challenging the adoption of plaintiff Prasann Kumar by Smt.

Kanchan Devi and it virtually changes the nature of the suit filed

by the plaintiffs, which is not permissible in the eye of law and as

held by Hon'ble the Supreme Court in the catena of judgments

that plaintiff is the dominus litis of the suit and enjoys a free hand

in couching the relief clause in the manner he pleases.

[2023/RJJD/013356] (10 of 10) [CW-2890/2021]

(14) In view of the above, this Court deems it appropriate to

quash and set aside the order dated 21.08.2019 passed by the

learned Additional District Judge, Churu.

(15) Consequently, this writ petition (SBCWP No.2147/2021) is

allowed. The impugned order dated 21.08.2019 (Annex.6), passed

by the learned Additional District Judge, Churu in Civil Original

Suit No.37/2004 (23/1999) is quashed and set aside and the

application (Annex.4) filed by defendant Prasann Kumar is

dismissed.

S.B.C.W.P. No.2890/2021

(16) Since S.B.C.W.P. No.2147/2021, challenging the order dated

21.08.2019, allowing the application for framing additional issue,

has been allowed and the impugned order has been quashed and

set aside, there is no need for the plaintiffs to lead additional

evidence by filing additional documents.

Hence, this petition (SBCWP No.2890/2021) also stands

allowed. The impugned order dated 22.01.2021 (Annex.7), passed

by the learned Additional District Judge, Churu in Civil Original

Suit No.37/2004 (23/1999) allowing the application for taking

additional documents on record, is quashed and set aside.

(17) All pending applications including stay petitions in both the

writ petitions stand disposed of accordingly.

(DR. NUPUR BHATI),J /skm/-

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