Judgment:
Sabina, J.
1. Plaintiffs-respondents filed a suit for declaration and the same was decreed by the Civil Judge (Sr. Divn.) Jhajjar vide judgment and decree dated 3.9.2003. Aggrieved by the same, defendants No. 1 to 4 filed an appeal and the same was dismissed by the Additional District Judge, Jhajjar vide judgment and decree dated 21.1.2006. Hence, the present appeal.
2. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 4 of its judgment, are as under:
2. The brief facts and circumstances leading to this appeal are that Tara Chand, Rup Chand and Balwan Singh had brought a suit No. 593 of 1997 on 28.7.1997 for declaration to the effect that plaintiffs and defendants No. 5 to 8 were legal heirs of Barhem Chand, deceased. They inherited the said shop of Barham Chand as mentioned in Para No. 1 of the plaint, in equal shares and the plaintiffs were owner in possession of the same and defendants No. 1 to 4 had no right, title or interest in the suit property. It was also sought to be declared that defendants No. 5 to 8 had also inherited the movable property of the deceased Barham Chand as mentioned in para No. 3 of the plaint in equal shares and they were also entitled to withdraw the amount with interest from the Post Office, Selhawas and defendants No. 1 to 4 had no right over the same.
3. Briefly stated the case of the plaintiffs is that Barham Chand son of Jugga Singh was owner in possession of the suit land, which is detailed and described in para No. 1 of the plaint and who had died on 1.7.1997 issueless. Defendants No. 5 to 8 were legal heirs of said Barham Chand, being his brother and sisters. It was also averred that said Barham Chand had also deposited a sum of Rs. 10,000/- in his name in a fixed deposit in the Post Officer, Salhawas on 25.5.1993. It was also averred that the defendants No. 1 to 4 were alleging a Will allegedly executed by deceased Brahm Chand on 19.8.1996. But the said Will was challenged on the grounds mentioned in Para No. 5 of the plaint.
4. Notice of the suit was given to the respondents. Respondents No. 1 to 4 in their joint written statement challenged the suit on the ground of maintainability and estoppel. On merits, it was pleaded that the plaintiffs and defendants No. 5 to 8 have not inherited the disputed property being the legal heirs of deceased Barham Chand and that the defendants No. 1 to 4 were owner in possession of the disputed land including the movable property by way of Will, which was duly executed by deceased Barham Chand in their favour and, therefore, the same is binding upon the rights of plaintiffs and defendants No.5 to 8 and in such circumstances, defendants No. 1 to 4 prayed for dismissal of the suit.
3. On the pleadings of the parties, following issues were framed by the trial Court on 24.8.2002:
1. Whether the Will dated 19,8.1996 executed by Braham Chand in favour of defendants No. 1 to 4 is illegal, null and void on the grounds mentioned in the plaint? OPP
2. Whether the plaintiffs along with defendant Nos. 5 to 8 are owner and in possession of the suit land? OPP
3. Whether the suit of the plaintiff is not maintainable in the present form? OPD
4. Whether the plaintiff has no locus standi to file the present suit? OPD
5. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct? OPD
6. Whether the suit of the plaintiffs is liable to be dismissed due to laches and acquisence? OPD
7. Relief.
4. However, vide order dated 28.8.2003, issue No. 1 was amended and one additional issue as N0.6-A was framed, which are as under:
1.Whether Braham Chand deceased executed a Will in favour of defendant No. 1 to 4 and the same is binding on the plaintiffs? OPD
6-A. Whether the plaintiffs and defendants No. 5 to 8 have succeeded and inherited the estate of deceased Braham Chand? OPP.
5. After hearing learned Counsel for the parties, I am of the opinion that the present appeal deserves to be allowed.
6. The substantial question of law that arises in this case is as to whether after re-framing of the issues and shifting of the burden of proof, the parties are required to be given opportunity to lead their evidence.
7. The facts of the present case are not in dispute and the question involved in this case is purely legal. Admittedly, on the pleadings of the parties, issues were framed by the trial Court on 24.8.2002, which have been reproduced above. Thereafter, plaintiffs closed their evidence on 14.3.2003 and the case was adjourned for defendants' evidence. On 18.8.2003, evidence of the defendants was closed by order and the case was adjourned to 28.8.2003 for rebuttal evidence of the plaintiffs. However, on 28.8.2003, following order was passed:
An application under Order 14 Rule 5 and 151 CPC for framing of correct issues has been moved by learned Counsel for the plaintiff, which is not opposed by learned Counsel for the defendant. In view of the facts mentioned in the application, the same is hereby allowed. The issue No. 1 is amended as under along with one additional issue 6-A.
1. Whether Braham Chand deceased executed a Will in favour of defendant No. 1 to 4 and the same is binding on the plaintiffs? OPD
6-A. Whether the plaintiffs and defendants No. 5 to 8 have succeeded and inherited the estate of deceased Braham Chand? OPP.
Now to come up on 2.9.2003 for arguments.
8. On the adjourned date i.e. 2.9.2003, arguments were heard and the case was adjourned for orders and on 3.9.2003 suit of the plaintiffs was decreed by the trial Court. It is, thus, evident that on the date, the case was listed for rebuttal evidence, issue No. 1 was reframed and fresh issue N0.6-A was also framed. A perusal of order dated 28.8.2003 reveals that issue No. 1 was reframed and an additional issue N0.6-A was framed on the basis of an application moved by the plaintiffs. The application was allowed as it was not opposed by the learned Counsel for the defendants. However, from the perusal of the order dated 28.8.2003, it transpires that the counsel for the parties had not made any statement to the effect that they did not want to lead any other fresh evidence after framing of issues. When issues were framed on 24.8.2002, burden of proof with regard to issue No. 1 was on the plaintiffs. However, while reframing issue No. 1 on 28.82003, burden of proof has been shifted on the defendants. In these circumstances, the trial Court was required to give opportunity to both the parties to lead their evidence. Although, evidence of defendants has been closed by order on 18.82003 yet an opportunity to prove issue No. 1, which was reframed by shifting the burden of proof on them, was required to be given. Whenever, fresh issues are framed, it is necessary for the Court to give proper opportunity to the parties to lead evidence qua the said issues. However, in case, issues are merely reframed and parties have already led their evidence in that regard and the counsel for the parties make statements that they do not want to lead any fresh evidence, then in that case necessity does not arise to give opportunity to the parties to lead further evidence. In the present case, the counsel for the parties had not made any statement to the effect that they do not want to lead fresh evidence on account of reframing of the issues. In these circumstances, the right of the defendants to prove issue No. 1 has been scuttled.
9. Hence, the substantial question of law framed in this case is answered to the effect that the appellants were required to be granted an opportunity to lead their evidence after reframing of issue No. 1 especially when burden to prove the said issue had been shifted on them.
10. Accordingly, this appeal is allowed. The impugned judgments of the Courts below are set aside. The case is remanded back to the trial Court to be decided afresh after affording due opportunity to the parties to lead their evidence from the stage of reframing of the issues in accordance with law.