HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on: 25.02.2025 Pronounced on: 13.03.2025 CM(M) No. 100/2024 (O&M) Vijay Lakshmi and ors. …..Appellant(s)/Petitioner(s) Through: Mr. Ankur Sharma, Advocate vs Ved Parkash and ors. .…. Respondent(s) Through: Mr. S. S. Katoch, Advocate Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE JUDGMENT 1. The petitioners/plaintiffs had filed a suit for partition of land measuring 22½ marlas along with house constructed over a piece of land measuring 10 marlas, comprising Khasra No. 964 situated at Main Bazar, Nagrota, Jammu with consequential relief of permanent prohibitory junction restraining the defendants/respondents from selling, alienating, disposing of or changing the nature of suit property or doing any structural alteration or construction in the suit property without partitioning the same amongst the co-sharers and the suit was assigned to the court of learned 1st Additional District Judge, Jammu (for short „the trial court‟). Along with the suit, an application for grant of interim relief was also filed. 2. The respondent Nos. 1 & 3/defendants 1 & 3 filed their written statement and after the written statement was filed by respondent Nos. 1 & 3/ defendant Nos. 1 & 3, an application came to be filed by the petitioners/plaintiffs on 15.03.2024 under Order 8 Rule 9 of the Code of 2 CM(M) No. 100/2024 Civil Procedure seeking permission of the Court to file replica. It was stated that the respondents/defendant Nos. 1 & 3 while filing the written statement have taken new pleas and more particularly, in paras 4 & 6 of the written statement, wherein the respondent Nos. 1 & 3/defendant Nos. 1 & 3 relied upon the Will dated 29.03.2017 allegedly executed by the mother-in-law of the plaintiff No. 1 and grandmother of plaintiff Nos. 2 to 5, namely, Vidhya Devi on the basis of which, the respondent Nos. 1 & 3/ defendant Nos. 1 & 3 had started raising construction. It was pleaded by them that whole of the suit land had been partitioned and each party to the suit was in his respective share, but the fact remained that the said Will dated 29.03.2017 was superseded by the Will dated 05.01.2022 executed by late Vidhya Devi. 3. It is further stated that respondent Nos. 1 & 3 in para-6 of the written statement have falsely stated that the respondent Nos. 1 & 3/defendant Nos. 1 & 3 are making renovation in the suit property and no new structures are being raised in the suit land, but as a matter of fact, under the guise of renovation, the defendants/respondents are raising two storied structure and they are in the process of raising the third storey as well. 4. The respondents/defendants 1 & 3 filed the response to the application, stating therein that the Will dated 05.01.2022 sought to be relied upon by the petitioners, is not in their favour and the subject matter of the Will is totally inconsistent with the Will dated 29.03.2017. The map annexed with Will dated 29.03.2017 clearly depicts the complete apportionment of the entire property of late Smt. Vidhya Devi, whereas the subsequent 3 CM(M) No. 100/2024 Will dated 05.01.2022 is vague and uncertain, as it pertains to 6 marlas of land only and even the map annexed with the Will dated 05.01.2022 is not the part and parcel of the Will, because the same is neither prepared nor signed by the testator or the witnesses. 5. The trial court vide its order dated 06.05.2024 decided both the applications preferred by the petitioners i.e. under Order 8 Rule 9 of CPC seeking permission to file replica and application under Order 39 Rule 1 and 2 of the CPC. 6. The petitioners/plaintiffs have filed the instant petition under Article 227 of the Constitution of India for assailing the order dated 06.05.2024 on the ground that the order impugned is contrary to order dated 26.03.2024 passed by this Court in RFA No. 12/2024, whereby this Court had in unequivocal terms directed the trial court to consider the replica of the petitioners/plaintiffs while deciding the application under Order 39 Rule 1 & 2 CPC but the learned trial court instead of considering the replica, dismissed the application under Order 8 Rule 9 CPC. It is also stated that in para 8 of the impugned order dated 06.05.2024, a finding has been returned by the trail court that Will 05.01.2022 cannot be relied upon as the same appears to be doubtful, whereas the fact remains that the Will was not questioned at any point of time and the same is in fact the last Will deed of Smt. Vidhya Devi. It is contended that the order impugned is not sustainable in law as the Will dated 29.03.2017 has been superseded by Will Deed dated 05.01.2022 being the last Will of Smt. Vidhya Devi. By placing these facts before this Court, the petitioners/plaintiffs have sought the quashing of order dated 06.05.2024. 4 CM(M) No. 100/2024 7. Mr. Ankur Sharma, learned counsel for the petitioners has restricted his challenge only to the rejection of application filed by the petitioners/plaintiffs under Order 8 Rule 9 of the CPC and has submitted that the finding returned by the learned trial court vis-à-vis Will dated 05.01.2022 was unwarranted and further that this Court had already directed the trial court to decide the application under Order 39 Rule 1 & 2 of the CPC after taking into consideration the pleadings and documents filed by the plaintiffs/petitioners alongwith their replica. 8. Per contra, Mr. S. S. Katoch, learned counsel for the respondents has argued that the petitioners cannot be permitted to file replica, as respondents 1 & 3 have not narrated the new facts in their written statement, but have only exposed the lies projected by the petitioners in their plaint. He has further been submitted that the petitioners/plaintiffs cannot get any benefit by placing on record the Will dated 05.01.2022 as the same was not executed in their favour. He has further stated that this petition filed under Article 227 of the Constitution is not maintainable for the purpose of throwing challenge to the order passed under Order 39 Rule 1 & 2 CPC, as the said order is appealable. 9. Heard learned counsel for the parties and perused the record. 10. By a composite order dated 06.05.2024, the learned trial court has decided two applications, one filed by the petitioners under Order 8 Rule 9 CPC and another under order 39 Rule 1 & 2 CPC. Learned counsel for the petitioners has restricted his challenge to the order impugned only to the extent of rejection of the application filed by the petitioners/plaintiffs under Order 8 Rule 9 CPC. It was vehemently urged by the learned 5 CM(M) No. 100/2024 counsel for the petitioners that once this Court had directed the trial court to decide application under Order 39 Rule 1 & 2 CPC filed by the plaintiffs afresh after hearing the parties again and after taking into account the pleadings and documents filed by the plaintiffs alongwith replica, the learned trial court could not have rejected application filed by the petitioners. The record depicts that the petitioners had earlier challenged the order dated 20.02.2024 passed by the learned trial court, whereby exparte interim order dated 29.01.2024 was modified and order of status quo was vacated by directing the defendants therein that they shall not create any 3rd party interest in the suit property. This Court vide order dated 26.03.2024, passed the following directions: “In view of the above, the appeal is disposed of by setting aside the impugned order dated 20.02.2024 passed by the learned trial court, with a direction to the trial court to decide the application under Order 39 Rule 1 & 2 CPC filed by the plaintiffs afresh after hearing the parties again and after taking into account the pleadings and documents filed by the plaintiffs alongwith their replica. Fresh consideration to the application under Order 39 Rule 1 & 2 CPC shall be accorded by the learned trial court most expeditiously, preferably within a period of one month from the date the parties appear before the trial court. Till such time the application is decided by the learned trial court, order dated 29.01.2024 passed by the said court shall remain in operation.” 11. It needs to be noted that the petitioners/plaintiffs had filed an application for filing replica under Order 8 Rule 9 CPC only on 15.03.2024 and objections to the said application were filed in the month of April 2024. A perusal of order dated 26.03.2024 reveals that the trial court was directed to decide the application under Order 39 Rule 1 & 2 CPC afresh after hearing the parties after taking into account the pleadings and documents filed by the plaintiffs/petitioners alongwith their replica. This Court while passing the order dated 26.03.2024 had taken note of the 6 CM(M) No. 100/2024 arguments made by the learned counsel for the petitioners therein that without waiting for the replica filed by the plaintiffs, the learned trial court had rushed to decide the interim application, as a result of which complete facts and documents could not be taken into consideration by the said Court and had observed that the Will dated 05.01.2022 has been placed by the petitioners before the trial court alongwith their replica has been filed on 15.03.2024 well after passing of the order impugned in appeal. This is borne from the record that application under Order 8 Rule 9 CPC was filed on 15.03.2024, which was not decided when this Court passed order on 26.03.29024. It was only by virtue of impugned order dated 06.05.2024 the application under Order 8 Rule 9 CPC filed by the petitioners came to be rejected. Therefore, there is no force in the contention of petitioners that the trial court was directed to consider the application afresh after considering the replica filed on 15.03.2024 particularly, the application for filing replica under Order 8 Rule 9 CPC was not decided by the learned trial court, as such, this contention is rejected. 12. It is next contended that the reliance placed on the Will dated 29.03.2017 allegedly executed by Vidhya Devi to demonstrate that the property stood divided between the parties is belied by the Will Deed dated 05.01.2022, whereby she has bequeathed land measuring 6 marlas comprising Khasra No. 712 min/493 situated at village Nagrota in favour of Vinod Devi i.e. wife of respondent No.2. The suit filed by petitioners is for partition of the land measuring 22 ½ marlas situated at Main Bazar Nagrota, Jammu. It is the contention of the respondents 1 & 3 that 7 CM(M) No. 100/2024 Vidhya Devi during her life time had divided the property and given the respective shares to her sons as she had already given the share to the family of Bansi Lal i.e. predecessor-in-interest of the petitioners by executing the gift deed in respect of 5 ½ marlas of land in favour of daughter of Bansi Lal, namely, Preeti, who happens to be petitioner No. 2 herein. The petitioners wanted to file replica to dispute the Will relied upon by the respondents 1 & 2 but the learned trial court has come to the conclusion that the petitioners cannot get benefit out of the Will Deed dated 05.01.2022, which has been executed by Vidya Devi in favour of Vinod Devi, who is not party to the suit. The trial court is further of the opinion that if the Will dated 5.01.2022 is taken into consideration, then the subject matter of suit will be reduced to 11 marlas and once the Will dated 05.01.2022 was in the knowledge of the petitioners, then what prevented them to place the same on record along with the plaint. In para-8 of the order impugned, the learned trial court has expressed doubt about the authenticity and genuineness of the Will dated 05.01.2022, but at the same time has observed that genuineness of will can otherwise be proved during evidence for which no replica is needed. 13. In a suit for partition, first of all it is to be proved whether the property is joint or not. As per the petitioners, the property was joint property and un-partitioned, whereas the defence of the respondents 1 & 3 is that the property stood already partitioned by Vidhya Devi among her three sons and share of Bansi Lal i.e. predecessor-in-interest of the petitioners, was given through the medium of gift deed in favour of petitioner No.2. 8 CM(M) No. 100/2024 14. The parties are supposed to prove their respective claims by leading evidence, and it is for the respondent Nos. 1 & 3 to prove their defence to the claim projected by the petitioners/plaintiffs in the plaint, provided they succeed in discharging their initial burden of proof. 15. Though this Court does not agree with the observations made by the learned trial court with regard to the genuineness and authenticity of the Will dated 05.01.2022, particularly when the learned trial court had observed that the will dated 05.01.2022 can be proved during the evidence, for which no replica is required but in the present facts and circumstances of the case, this Court finds that order impugned, insofar as it relates to rejection of Order 8 Rule 9 CPC is concerned, the same has been passed by the learned trial court within the parameters of law. The learned trial court has been vested with the jurisdiction to either allow or to refuse the subsequent pleadings in terms of Order 8 Rule 9 CPC and this finding has been returned after thorough examination of the pleadings, therefore, this court is of the considered view that there is no jurisdictional error on the part of the learned trial court. Moreover, the petitioners cannot claim to be prejudiced by rejection of the application under Order 8 Rule 9 CPC, when the learned trial court has in fact permitted the petitioners to prove the Will dated 05.01.2022. 16. In view of what has been said and discussed above, order impugned dated 06.05.2024 passed by the learned trial court is upheld, though this Court does not subscribe the view of the learned trial court expressing the doubt with regard to the genuineness and authenticity of the Will dated 05.01.2022 when the same was not subject matter of adjudication 9 CM(M) No. 100/2024 before it. With these observations, the present petition is disposed of. It is made clear that the trial court shall proceed with the trial of the case without being influenced in any manner in respect of the any observation either made by this Court in this order or by the learned trial court in the order impugned, while deciding the suit finally. 17. Disposed of. (RAJNESH OSWAL) JUDGE Jammu: 13.03.2025 Karam Chand/Secy. Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No KARAM CHAND 2025.03.13 15:22 I attest to the accuracy and integrity of this document