Anita Devi Alias Maya vs Omprakash
2025 Latest Caselaw 9536 Raj

Rajasthan High Court - Jodhpur

Anita Devi Alias Maya vs Omprakash on 28 March, 2025

Author: Nupur Bhati

Bench: Nupur Bhati

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      AT JODHPUR
                S.B. Civil Writ Petition No. 5308/2025

1.      Anita Devi @ Maya D/o Late Shri Bhagirath, W/o Shri
        Rakesh Kumar, aged about 40 years, R/o Basanti Choek,
        Jaswant Colony, Sri Ganganagar (Raj.).
2.      Ritu D/o Late Shri Bhagirath, W/o Ramesh Kumar, aged
        about 29 years, R/o Sadhuwali, Tehsil and District Sri
        Ganganagar (Raj.).
                                                                      ----Petitioners
                                       Versus
Omprakash S/o late Shri Bhagirath, aged about 40 years, R/o
Ward No. 19, (Present Ward No. 6), Suratgarh, District Sri
Ganganagar (Raj.).
                                                                     ----Respondent


For Petitioner(s)            :     Mr. Monal Chugh.
For Respondent(s)            :     Mr. B.R. Chahar.


              HON'BLE DR. JUSTICE NUPUR BHATI

Order Reserved on: 11/03/2025 Pronounced on: 28/03/2025

1. The petitioners/plaintiffs, by way of this petition filed under

Article 227 of the Constitution of India, have assailed the validity

of the order dated 20.02.2025 (Annex.7) passed by learned

Additional District Judge, Suratgarh ('Trial Court') whereby

application preferred by the petitioners/plaintiffs under Order XIV

Rule 5 of the Code of Civil Procedure, 1908 (hereinafter as 'CPC')

has been partly allowed. The prayer made in the instant petition

reads as under:

"It is, therefore, most humbly and respectfully prayed on behalf of petitioner that this writ petition in the nature of certiorari may kindly be allowed and :-

i] By an appropriate writ, order or direction, the impugned order dated 20.02.2025 (Annex.7) passed by the learned Additional District Judge, Suratgarh, Sri Ganganagar in Civil Case No.09/2018 (C.I.S. No.

(2 of 9) [CW-5308/2025]

09/2018) (Anita Devi @ Maya & Anr. Vs. Omprakash) may kindly be quashed and set aside to the extent of rejection of petitioner's prayer; and the applications filed by the petitioners. (plaintiffs) under Order 14 Rule 5 CPC may kindly be ordered to be allowed and burden of proving in issue no.1 may kindly be ordered to lie on the respondent.

ii] Any other appropriate writ, order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favor of the petitioners.

iii] Costs of the writ petition may kindly be awarded to the petitioners."

2. Succinctly stated, the facts of the case are that the

petitioners/plaintiffs filed a suit for declaring the registered Will

dated 29.10.2013 to be void, partition of the suit properties and

declaring the petitioners/plaintiffs to have 1/3 rd share each in the

disputed property. After service of the summons, the

respondent/defendant filed his written statement while denying

the facts stated in the plaint. As per the pleadings of the parties,

the learned Trial Court framed four issues vide order dated

09.01.2019 (Annex.4). Subsequently, the petitioners/plaintiffs

filed an application under Order XIV Rule 5 of the CPC seeking

amendment/re-framing of the issues and also framing of new

issues, which was contested by the respondent/defendant by filing

reply (Annex.6). The learned Trial Court vide order dated

20.02.2025 (Annex.7) proceeded to partly allowed the application

(Annex.5) preferred by the petitioners/plaintiffs. Aggrieved by the

same instant petition has been filed by the petitioners/plaintiffs.

3. Learned counsel for the petitioners submitted that learned

trial court has without dealing with the proposed issue Nos.1 and

2 as prayed for in application (Annex.5) has rejected these

proposed issues. He also submitted that the learned trial court has

(3 of 9) [CW-5308/2025]

erred in fastening the burden of proof of issue no.1, as framed

vide order dated 09.01.2019 (Annex.4), upon the petitioners as

the burden to prove the validity of will lies upon the propounder

and in the present case the respondent has averred in his written

statement that the will (Annex.1) was duly executed in his favour

by father of petitioners. He also submitted that the learned trial

court, despite taking note of the order dated 24.02.2021 wherein

it was observed by the learned trial court itself that the validity of

will has to be first proved by the respondent, has put the burden

to prove issue no.1 upon the petitioners. He also submitted that if

the will is surrounded by suspicious circumstances the initial onus

is upon the propounder of will to remove these suspicious

circumstances. He also submitted that in the present case, the

petitioners, being legal heirs, have been excluded from the will

and that in itself is a suspicious circumstance and hence, the

burden to prove validity of will lies upon the respondent

(propounder of the will in question). For this submission he placed

reliance upon the judgment passed by the Hon'ble Supreme Court

in Kavita Kanwar vs. Pamela Mehta and ors., (2021) 11 SCC 209.

4. Learned counsel for the petitioners further submitted that

the learned trial court has erred in not considering the legal

proposition i.e., propounder has to prove the validity of will, and

has framed the issue No.1 in negative form by putting burden of

proof of this issue on the petitioners. He also submitted that

application under Order XIV Rule 5 of the CPC can be moved at

any stage before the passing of decree.

5. Learned counsel for the petitioners also submitted that the

proposed issues no.3 as prayed for in application (Annex.5) was in

(4 of 9) [CW-5308/2025]

respect to the relief of permanent injunction, however the learned

trial court has wrongly rejected this proposed issue on the ground

that framing separate issues for each relief prayed is not

necessary.

6. Per contra, learned counsel appearing for the

respondent/defendant submitted that since the

petitioners/plaintiffs have questioned the genuineness and

correctness of the registered Will executed in favour of

respondent/defendant, therefore, the learned Trial Court was

justified in putting the burden to prove the issue No.1 upon the

petitioners/plaintiffs. He also submitted, while relying upon

Section 101 of the Indian Evidence Act, 1872, that when a party

asserts a fact, the burden of proof of the same lies upon such

party.

7. Learned counsel for the respondent/defendant also

submitted that initially four issues were framed by the learned

Trial Court on 09.01.2019, however, the petitioners have not

challenged the order dated 09.01.2019 (Annex.4) and the

petitioners have already led their evidence. He also submitted that

it was at the stage of respondent/defendant's evidence that the

application under Order XIV Rule 5 of the CPC seeking

amendment/framing of the issues was filed i.e. in the year 2025

with a sole motive to delay the proceedings.

8. I have heard learned counsel for the parties and have

perused the material available on record.

9. This court finds that the learned trial court vide order dated

09.01.2019 (Annex.4) framed following issues:

(5 of 9) [CW-5308/2025]

"1& D;k iathd`r olh;r fnukad 29-10-2013 ftldk leqfpr mYys[k vuqrks'k ds in la[;k 4 esa fd;k x;k gS tks dwVjfpr ;k fof/k ds izko/kkuksa ds vuq:i ugha gS \ && oknhx.k

2& D;k oknhx.k us ;g okn mi;qDr U;k; "kqYd ij izLrqr ugha fd;k gS \ && [email protected]

3& D;k D;k izfroknhx.k vius firk dh ;k iSr`d laiafRr esa 1@3 fgLlk j[krs gSa \ && oknhx.k 4& vuqrks'k \

fook|dks dh O;k[;k dh xbZ] vU; fdlh fook|d dk izLrko ugha j[kk x;k"

10. This court also finds that the petitioners filed application

(Annex.5) with the prayer to amend/frame some issues which are

reproduced as under:

"vr% izkFkZuk i= izLrqr dj Jheku~ U;k;ky; ls vkxzg fd;k tkrk gS fd fuEu fooknd u;s fojfpr fd;s tkosa &

1 D;k rFkkdfFkr olh;r fnukad 29&10&2013 "kq} gS \ izfroknh&

2 D;k olh;r fnaukd 29&10&2013 HkkxhjFk iq= gjpUn }kjk fu'ikfnr dh xbZ gS \ izfroknh&

3 D;k oknhx.k oknxzLr lEifRr ds lEca/k esa "kk"or O;kns"k izkIr djus dh vf/kdkjh gS\ oknh&

4 D;k okn vof/k ckf/kr izLrqr gS \ izfroknh&

fooknd la[;k 2 esa Jheku~ U;k;ky; }kjk fooknd dk Hkkj oknhx.k ,oa izfroknhx.k nksuks ij i{k ij j[kk x;k gS tcfd U;k;"kqYd dh vkifRr izfroknhx.k }kjk dh xbZ gS blfy, fooknd la[;k 3 fuEu izdkj ls fjQzse fd;k tkosa &

**D;k oknhx.k us okn mi;qDr U;k; "kqYd ij izLrqr ugha fd;k gS \ izfroknh&

fooknd la[;k 3 fuEu izdkj ls fjQzse fd;k tkosa &

** D;k oknhx.k oknxzLr lEifRr esa izR;sd dk 1@3 dqy 2@3 o izfroknh dk 1@3 fgLlk ?kksf'kr djokdj lEifRr dk i`Fkd dCtk izkIr djus dh vf/kdkjh gSA

(6 of 9) [CW-5308/2025]

oknhx.k&

fuEu fooknd u;ks tksMk tkosa &

D;k oknhx.k oknh dh pj.k la[;k 5 esa fdjk;s ij nh xbZ nqdkuks ds fdjk;k esa 2@3 fgLlk izkIr djus dh vf/kdkjh gS \

vr% fookndks dh fojpuk gsrw izkFkZuk i= izLrqr gSA"

11. The learned trial court vide order dated 20.02.2025 has

partly allowed the application (Annex.5) and framed/re-framed

some issues in the following manner:

",slh fLFkfr esa fook|d la[;k 3 ds LFkku ij izkFkZuk i= esa izLrkfor fook| dks ds vuqlkj fuEukuqlkj fook+|d fojfpr fd;k tkuk U;k;ksfpr ik;k tkrk gS& ¼1½ D;k oknhx.k okn dh en la[;k 02 esa of.kZr oknxzLr laifÙk esa izR;sd oknhx.k dk 1@3 dqy 2@3 o izfroknh dk 1@3 fgLlk ?kksf'kr djokdj laifÙk dk i`Fkd dCtk izkIr djus dh vf/kdkjh gS\ &oknhx.k ¼2½ D;k oknhx.k okn dh pj.k la[;k 5 esa fdjk;s ij nh xbZ nqdkuksa ds fdjk;k esa 2@3 fgLlk izkIr djus dh vf/kdkjh gS\ &oknhx.k vr% izkFkhZ@oknh dh vksj ls izLrqr izkFkZuk i= vkaf"kd :i ls Lohdkj fd;k tkdj fook+|d la[;k 2 dks lkfcr djus dk Hkkj izfroknhx.k ij Mkys tkus] oknh dk okn vof/k ckf/kr gksus ds laca/k esa ,d uohu fook|d la[;k 5 D;k oknh us okn vof/k ckf/kr izLrqr fd;k gS\ & izfroknh** fojfpr fd, tkus ,oa fook|d la[;k 3 ds LFkku ij fuEukuqlkj fook|d la[;k 3 o 4 fojfpr fd, tkus dk vkns"k fn;k tkrk gS & 3- D;k oknhx.k okn dh en la[;k 02 esa of.kZr oknxzLr laifÙk esa izR;sd oknhx.k dk 1@3 dqy 2@3 o izfroknh dk 1@3 fgLlk ?kksf'kr djokdj laifÙk dk i`Fkd dCtk izkIr djus dh vf/kdkjh gS& oknhx.kA 4- D;k oknhx.k okn dh pj.k la[;k 5 esa fdjk;s ij nh xbZ nqdkuksa ds fdjk;k esa 2@3 fgLlk izkIr djus dh vf/kdkjh gS\ &oknhx.k"

12. The petitioners have challenged the order dated 20.02.2025

(Annex.7) as the proposed issue Nos.1, 2 and 3 have been

declined to be added. So far as the contention of the counsel for

the petitioners that the learned trial court has nowhere dealt with

proposed issue Nos.1 and 2 is concerned, this court finds that the

learned trial court has observed that the burden to prove validity

of the will in question is on the propounder of the will i.e., the

respondent, as he has taken the defence to the effect that the will

(7 of 9) [CW-5308/2025]

in question is registered and has been duly executed in his favour.

Learned trial court has also observed that the burden to prove

that the will in question is forged and fabricated and is not in

accordance with the provisions of law, is on the petitioners as they

have challenged the validity of the will in question and has also

observed that the burden to prove the validity of will, and the

burden to prove that the will is forged and fabricated and is not in

accordance with the provisions of law are two different

circumstances.

13. Learned trial court has also taken note of an earlier order

dated 24.02.2021 (Annex.R/1 Colly.), which has attained finality

inasmuch as not having been challenged, wherein the learned trial

court while rejecting the application filed by the

petitioners/plaintiffs' for leading more evidence to prove Issue

No.1 made the following observation:

"izkFkhZ;k ds fo}ku vf/koäk dh bl cgl ls eSa lger ugha gwa fd olh;r dks QthZ ,oa dwVjfpr djus dk eq[; nkf;Ro oknh i{k ij gS] D;ksafd olh;r dk mi;qä fu'iknu rks ml O;fä dks fl) djuk gS ftlds i{k esa olh;r tkjh dh xbZ gSA ;|fi olh;r ds laca/k esa fook|d l[;k 1 dk izHkkj oknhx.k ij Mkyk x;k gS] ijarq "kiFk i= igys izfroknh i{k dks muds i{k esa tkjh gqbZ olh;r ds lkFkZd fu'iknu dks fl) djuk gksxkA ewyr% olh;r dks fl) djus dk izHkkj izfroknh vkseizdk"k ij gS ftlds i{k esa ;g nLrkost tkjh fd;k x;k gSA okfn;k bl ckr dks Li'V ugha dj ikbZ gS fd bl ek/;e ls og rFkkdfFkr olh;r dks dwVjfpr fl) djuk pkgrh gSA oSls Hkh tc izfroknh rFkkdfFkr olh;r dks viuh lk{; esa fl) djsxk rks mu xokgksa dks izfrijhf{kr djus dk vf/kdkj okfn;k dks jgsxkA"

13.1. Learned trial court, after referring to the afore-cited

observation in the order dated 24.02.2021 (Annex.R/1 Colly.) has

observed that the said order has attained finality, inasmuch as the

said order was not challenged. Thus, after referring to the

observation made therein (as quoted in the preceding paragraph)

the learned trial court has observed that neither issue no.1 has

(8 of 9) [CW-5308/2025]

been framed negatively nor issue no.1, so framed, would hinder

the adjudication of the disputed subject matter between the

parties.

13.2. This court, upon perusal of order dated 24.02.2021

(Annex.R/1 Colly) as well as order dated 20.02.2024, finds that

the learned trial court has taken note of the well established

proposition of law that the initial onus to prove the validity of the

will lies on the propounder of the will, and once this initial onus is

discharged the burden to prove that such will is forged and

fabricated and not in accordance with the provisions of law would

lie upon the person who challenges the validity of the will in

question. In the present case the petitioners/plaintiffs have filed

the suit (Annex.2), inter-alia, for declaring the registered Will

dated 29.10.2013 (Annex.1) to be null and void on the ground of

the same being forged and fabricated. Thus, the burden to prove

issue no.1, which has been framed in this respect, lies on the

petitioners/plaintiffs, however, the initial onus to prove the validity

of the will in question is upon the respondent as he has taken

defence that the will in question has been duly executed in his

favour and is also registered. Therefore, the contention of the

counsel for the petitioners that the learned trial court has not

dealt with the proposed issue No.1 and 2 is not sustainable.

14. As far as contention of the counsel for the

petitioners/plaintiffs in respect to proposed issue no.3 is

concerned, this court finds that the learned trial court has rejected

to frame proposed issue no.3 i.e., "Whether the plaintiffs are

entitled to the relief of permanent injunction in respect to the suit

property?", on the ground that the same is covered under the

(9 of 9) [CW-5308/2025]

issue No.4, which pertains to relief. Learned trial court has also

observed that neither it is necessary to frame separate issues for

the each relief as prayed for by the plaintiffs in their plaint

(Annex.2) nor there is any bar in law to frame single issue for all

the reliefs prayed for in the plaint. This court concurs with the

finding given by the learned trial court in this respect as the object

behind the framing of issues is to streamline the adjudication of

the controversy in the suit and as the proposed issue no.3,

pertains to the relief of Permanent Injunction in respect of the suit

property, the same is covered under the issue no.4, which has

already been framed by the learned trial court in respect to the

reliefs claimed by the petitioners/plaintiffs in their plaint

(Annex.2).

15. It is important to note here that the power of

superintendence under Article 227 of the Constitution of India is

supervisory and not appellate and must be exercised sparingly in

appropriate cases, where there is a manifest miscarriage of

justice. In the present case this court does not find any error in

the impugned order therefore, the instant petition does not

require interference by this court.

16. In view of above discussion, the petition lacks merit and,

therefore, the same is hereby dismissed.

17. Pending application (s), if any, shall also stand disposed of.

No order as to the costs.

(DR. NUPUR BHATI),J 244S-reserve-DJ/-

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