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Judgment
D.V. Sehgal, J.—This revision petition is directed against the order dated 5.5.1987 passed by the learned District Judge, Ludhiana in the course of execution proceedings of the award made by him as Chairman of the tribunal under the Punjab Town Improvement Act, 1922.
Briefly stated, the facts of the case are that one Lachhman Dass and three sons namely: Dharam Pal Respondent No. 2, Tej Pal Petitioner and Raj Pal Respondent No. 3. Smt. Anjana Rani, Respondent No. 4 is the wife of Dharam Pal whereas Smt. Satya Rani Respondent No. 5 is the wife of Raj Pal Tej Pal Petitioner has a son namely, Bharat Bhushan. Lachhman Dass died on 27-1-1982.
Lachhman Dass had 14 Kanals 16 Marlas of land in village Ladowal, Tehsil and District Ludhiana, It is alleged by the Petitioner that vide gift deed dated 7.5.74 he gifted away 7/8 share of this land to Bharat Bhushaa The remaining 1/8 share remained with him Lachhman Dass was a partner in a firm by the name of M/s. Oswal Hosiery Factory, Respondent No. 6. This firm owned 3/4 share in 17 Kanals 2 Marias of land in village Habowal Khurd, Tehsil and District Ludhiana. Lachhman Dass was also a partner in another firm named M/s. Lachhman Dass and Sons. Ludhiana Respondent No. 8. This firm had 9/10 share in 12 Kanals of land in village Habowal Khurd, Tehsil and District Ludhiana.
After the death of Lachhman Dass, Tej Pal Petitioner and his son Bharat Bhushan filed a civil suit for a declaration to the effect that by virtue of gift deed dated 7.5 1974 Bharat Bhushan is the owner of 7/8 share of the land in village Ladowal and that the Petitioner has come to Exhibit 1/3 share of the remaining 1/8 share of land owned by Lachhman Dass at the time of his death The suit was contested by Dharam Pal Respondent No. 2, Smt. Anjana Rani and Satya Rani Respondents Nos. 4 and 5. They challenged the validity and due execution of the gift deed also stacked claim on the basis of a will alleged to have been executed by Lachhman Dass on 15-1-1982. It was pleaded in defence that by virtue of the said will the land in dispute was inherited by Smt. Anjana Rani and Satya Rani Respondents Nos. 4 and 5. However, on 27-2-1987 the aforesaid Defendants to the suit gave up their plea on the basis of the will and infact withdrew the defence. The suit of the Petitioner and his son Bharat Bhushan was, therefore, decreed on 3.3.1987.
The land of village Habowal Khurd was acquired by the Government under the Punjab Town Improvement Act, 1923, on 11.6.1979 The Collector made his award determining the compensation. On reference being made the Tribunal enhanced the compensation vide its award dated 7.1.1986 On 7.6.1986 Dharam Pal and others filed an execution application to recover the amount of compensation. On 9 10 1986, Tej Pal filed an application before the learned District Judge that by virtue of nature inheritance after the death of Lachhman Dass he is entitled to 1/3rd share in respect of land in village Habowal Khurd which had been acquired. Dharam Pal and others filed their reply to this application on 22 10 86 wherein on the strength of the will dated 15.11.1986 they pleaded that the Petitioner did not inherit any estate of the deceased which devolved on the successors by virtue of the said will Tej Pal filed his re-joinder on 5.11.1986. On the basis of the aforesaid planning, the learned District Judge framed issues and the vital issue being issue No. 2 is to the following effect:
Whether Lachhman Dass had executed a valid will? If so to what effect? OPDH
On 20-3-1987 Tej Pal Petitioner filed application under Order 6, Rule 17 read with Section 151 CPC for amendment of the rejoinder so as to incorporate the following plea:
That Shri Dharam Paul Oswal and others claiming themselves to be legal heirs of Shri Lachhman Dass Oswal on the basis of the will dated 15-1-1982 are barred by their act and conduct from maintaining that claim. In a suit involving inheritance to part of the estate of Shri Lachhman Dass Oswal, the said persons or alleged legatees under the will gave up the plea of the will in the said suit. They have, therefore, by their act and conduct admitted that no legal or valid will executed by Shri Lachhman Dass Oswal existed or is operative. They are, therefore, debarred to claim anything in the present proceedings on the basis of the said will.
He further wanted to elaborate that in the aforesid civil suit Dharam Paul and others and the counsel for the Defendants vide their statement dated 27.2.1987 had given up the plea regarding the will of the late Shri Lachhman Dass about the property in dispute and issue No. 4 which had been framed with regard to the validity of the will had been decided against them. This application has, however, been dismissed by the learned District Judge vide the impugned order, Feeling aggrieved against this order, the Petitioner has filed the present revision petition in this Court.
I have heard the learned Counsel for the parries. I am of the considered view that the learned District Judge erred in the exercise of his jurisdiction in declining the application. The fact which has weighed with the learned District Judge for passing the impugned order is that the statement in the suit on behalf of Dharam Paul and others was made on 27-9-1985. Therefore, when Tej Pal Petitioner filed his claim application on 9.10.1986 he had knowledge of that statement. It is fairly conceded by both sides that this is factually wrong In fact the statement was made by Dharam Paul and others in the civil suit on 27.2.1987 i.e., even after the rejoinder had been filed by Tej Pal on 5 11.1986. This was, therefore, a subsequent event which ought to have been allowed to be incorporated by way of amendment.
Mr. O.P. Goyal, learned Counsel for the Respondents has however, vehemently contended that the will dated 15 1 1982 by which Lachhman Dass deceased bequeathed his estate in favour of Anjana Rani and Satya Rani Respondents Nos. 4 and 5 respectively had nothing to do with the land in village Ladowal. It was for this reason that Dharam Paul and others made a statement in the suit giving up their claim and defence on the basis of that will He, therefore, submits that their statement in the suit cannot be made use of in the present proceedings for recovery of amount of compensation relating to the acquisition of land in village Habowal Khurd. That may or may not be so. The present is not the stage to decide this question. The Petitioner ought to have been given adequate opportunity to plead the effect of statement of Dharam Paul and others in the civil suit decided on 27.2.1987 and its resultant effect on the rival claim of the parties relating the compensation of acquired land It is only at the stage of adjudication of the rival claim of the parties to the amount of compensation when the real controversy and effect of the will as also its validity and its due execution ought to have been adjudicated and decided. While allowing or disallowing application for amendment of replication the merits of the pleas which are sought to be taken are not to be adjudicated upon by the Court. That would amount to pre-judicing the plea of a party before it is put to trial.
Consequently, I allow this revision petition, set aside the impugned order dated 18.5.1987 and allow the application for amendment of the replication filed by the Petitioner. The parties are, however, left to bear their own costs.
The parties, through their counsel, are directed to appear before the learned District Judge, Ludhiana on 14.12.1988 when he shall allow the Petitioner to amend his replication and then proceed further in accordance with law.