Tara Chand vs Ishwar Chand

Sat Pal, J.—This petition has been directed against the order dated 28.3.1997 passed by the Additional Civil Judge (SD) Kaithal. By this order, the learned trial court has rejected the application of the plaintiff for framing of an additional issue to the effect "whether the suit land was partitioned orally by the coowners on 1.10.1986 and memo to this effect was reduced to writing on 22.10.1986 ?" It is not disputed that this issue arises out of the pleadings of the parties made in paras 4 and 5 of the plaint and the written statement. The only ground given by the learned trial court in not framing this issue is that already one issue has been framed to the effect that "Whether the plaintiff is owner of the disputed property ?" The learned trial court has observed that under the said issue the plaintiff was at liberty to prove the alleged oral partition and the alleged memorandum dated 22.10.1986.

Mr. Goel, the learned counsel appearing on behalf of the petitioner, however, submits that the ownership of the plaintiff being cosharers in the suit property, is not disputed by any of the defendants. He, therefore, submits that since the additional issue arise out of the pleadings, the learned trial court ought to have framed this issue.

After hearing the learned counsel for the parties and having perused the pleadings and the impugned order, I am of the opinion that the additional issue prayer for, has to be framed for the proper adjudication of the case. Accordingly, the petition is allowed and the impugned order dated 28.3.1997 is set aside and the learned trial court is directed to frame the additional issue stated herein above. It may be relevant to note here that on 10.6.1997 when notice of motion was issued to the respondents, the learned counsel for the petitionerplaintiff had given a statement that the plaintiff would produce only one witness on the issue so framed and would not reopen the trial. Accordingly, it is made clear that the petitionerplaintiff will produce only one witness on the additional issue and will not be entitled to examine more than one witness. With this direction, the petition stands disposed of.