Nirmala Devi vs. Leela Devi

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Civil Revision No. 233 of 2017.

Reserved on : 19th July, 2018.

Date of Decision: 31st July, 2018.

Smt. Nirmala Devi …..Petitioner/Plaintiff.

Versus

Smt. Leela Devi & Ors. ….Respondents/Defendants.

Coram The Hon'ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting? Yes.

For the Petitioner: Mr. J.L. Bhardwaj, Advocate. For Respondent No.1: Mr. K.D. Sood, Sr. Advocate with Mr. Shubham Sood, Advocate. Proforma Respondents No. 2 to 4 ex-parte.

Sureshwar Thakur, Judge.

The instant petition is directed, against, the orders recorded, by, the learned trial Court, on 18.11.2016, upon an application, instituted therebefore, by the plaintiff, cast under the provisions of Section 151 of the CPC, wherein, she prayed, for, summoning the apt witness, from, the Office of Sub Judge, Kandaghat along with records of civil suit No. 113-K/1 of 1996, titled as Rameshwar Singh etc. vs. Pratap Singh etc., civil suit whereof, stood instituted for dismemberment of the suit land. The necessity of its being permitted to be adduced into evidence, through its custodian, is, comprised in the factum of the aforesaid Civil Suit, being instituted by the predecessors-in-interest, of, PW-2 and PW-3, against Pratap Singh, wherein, only defendant Leela Devi wife of Bhagwan Singh, was impleaded as a party, whereas, the other daughters, of, deceased Bhagwan Singh, remained unmpleaded. However, the production of records, of, the aforesaid civil suit, is, neither just nor relevant, for, clinching the controversy besetting the parties at contest, (a) controversy whereof is hinged only, vis-a-vis, the valid and due valid execution, of, a testamentary disposition, by deceased Bhagwan Singh, vis-a-vis his estate. The best evidence in respect thereof, is not comprised, in, the summoning of the record, of, the aforesaid civil suit, rather is comprised, in the apt testifications, as may be, rendered by the marginal witnesses thereto. Consequently, the prayer made in the application, is irrelevant, for determining the aforesaid core res controversia, hence, the refusal by the learned trial Court of the aforesaid relief, vis-a-vis, the plaintiff, is, rather apt.

2. For the foregoing reasons, the instant petition is dismissed, and, the orders impugned before this Court are maintained and affirmed. The parties are directed to appear before the learned trial Court, on 13th August, 2018. All pending applications also stand disposed of. Records be sent back forthwith.

31st July, 2018 Judge. (jai)

(Sureshwar Thakur)