Phoolwati vs Sharbati and Others

Alok Singh, J.—Defendant No. 4 - Petitioner has invoked supervisory jurisdiction of this Court assailing the order dated 5.10.2010 passed by Addl. Civil Judge (Sr. Divn.) Hisar whereby Defendant No. 4 was not permitted to cross-examine the witnesses of the Plaintiffs.

The brief facts of the present case are that Plaintiffs have filed suit for declaration to the effect that Plaintiffs are owner to the extent of 3/4th share being the legal heirs of their father Sh. Dariya Singh and seeking further declaration to the effect that alleged Will dated 4.11.2004 allegedly executed by Dariya Singh in favour of Defendant No. 3 is null and void, illegal, fabricated and was never executed by Dariya Singh. In the written statement filed by Defendant No. 4 (Petitioner herein) has also contended that alleged Will dated 4.11.2004 in favour of Defendant No. 3 was never executed by Dariya Singh and is illegal, null and void ab initio. In the C.R. No. 7454 of 2010 suit, Defendant No. 3 filed independent written statement contending therein infact Dariya Singh has executed forged Will in favour of Defendants No. 1 and 3.

The only question involved in the present case is -As to whether Dariya Singh has ever executed any Will in favour of Defendants No. 1 and 3? Plaintiff as well as Defendant No. 4 (Petitioner herein) are on the one side alleging that Dariya Singh has never executed any Will in favour of Defendants No. 1 and 3 and alleged Will is forged, fabricated and void ab initio while on the other hand Defendant No. 3 is banking upon the Will executed by Dariya Singh. In view of the fact that Plaintiff and Defendant No. 4 have taken similar case alleging that Dariya Singh has not executed any valid Will in favour of Defendants No. 1 and 3, in the opinion of this Court Defendant No. 4 has absolutely no adverse interest against the Plaintiff. That being so Defendant No. 4 has absolutely no right to cross-examine the witnesses of the Plaintiffs.

Learned trial Court has placed reliance on the judgment of this Court in the matter of Kartar Singh and Ors. v. Sukhbir Singh and Anr. reported in 1998(3) PLR 827. This Court in the case of Kartar Singh (supra) has held that if Defendant does not clash with the Plaintiff, he has no right to cross-examine the Plaintiff witnesses.

I do not find any illegality or jurisdictional error in the impugned order.

Petition is devoid of merit, hence, is dismissed.