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Judgment
This appeal has been preferred by appellants-defendants
against the judgment and decree dated 22.01.1997 passed by
learned Addl. District Judge, Barmer in Civil Original Suit No.2/92
whereby he has decreed the suit in favour of
plaintiffs/respondents.
Facts in brief giving rise to this appeal are that
plaintiffs/respondents filed a suit claiming possession of the
disputed house from defendants along with mesne profit @ Rs.300
per month till recovery of the possession and a sum of
Rs.10,800/- for use and occupation of the disputed property.
Claim over the property was laid by plaintiffs with the
averments that their grand-father Jethmal purchased one property
from Lakh Singh, Mool Singh etc. through sale deed dated
11.1.1935 and constructed his house. Other property was
purchased by him through sale deed dated 03.10.1942 from Rug
Singh and constructed his house thereon. By way of will dated
20.4.1977, he bequeathed the houses to plaintiffs'' father
Premchand and grand-mother Smt. Jeevni @ Jamna in respect of
the houses purchased in the year 1935 and 1942 respectively.
After death of Shri Jethmal in the year 1978, Premchand and
Jamna became absolute owner of the property bequeathed to
them. Shri Jethmal in his life time has bequeathed his other
property situated in Ummedpur to his another son Devilal,
defendant No.1. As Devilal did not serve his mother Smt. Jeevni
properly and plaintiffs used to take care of her, she bequeathed
the property by way of will dated 12.2.1986 to plaintiffs. They
used to live with their grand-mother in that house. Death of Smt.
Jeevni took place on 1.3.1996. After the necessary rituals
performed within 12 days of the death, Devilal raised a dispute
regarding the house bequeathed to plaintiffs. Some criminal cases
were registered between both the sides. On 13.5.1987, plaintiff
Devilal forcibly entered into the house and took over its
possession, for which a criminal case was also registered against
the offenders on the same day. In background of these facts, suit
has been filed along with relief claimed as mentioned above.
Defendants denied the facts mentioned in the plaint and
raised objections regarding genuineness of both the wills executed
on 20.4.1977 and 12.2.1986. It was alleged that these wills were
forged.
On the basis of the pleadings, learned trial Court framed
following issues :
"1. Whether grand-father of plaintiffs Shri Jethmal bequeathed house No.1 in favour of father of plaintiffs and house No.2 in favour of Smt. Jeevni through sale deed on 20.4.1977. ... plaintiffs
Whether Smt. Jeevni became absolute owner of the property in dispute after death of Shri Jethmal. ...plaintiffs
Whether the plaintiffs became absolute owner of the disputed property as per the will executed on 12.2.1986 by Smt. Jeevni after her death. ... plaintiffs
Whether defendants took over forcible possession of the ground-floor and first-floor of the disputed property on 30.5.1987. ... plaintiffs
Whether the plaintiffs are entitled to get the possession back from defendants. ...plaintiffs
Whether plaintiffs are entitled to realize Rs.10,800/- as compensation from defendants. ...plaintiffs
Whether both the wills are forged. ...defendants
Whether Jethmal was not entitled to execute any will in respect of both the houses. ...defendants
Whether defendants were in continuous possession of the disputed house since the death of Shri Jethmal and what is its effect. ...defendants
Whether plaintiffs have made wrong valuation of the disputed property, which is worth Rs.2,00,000/- and have paid inadequate court-fees. ...defendants
Reliefs."
During trial as many as seven witnesses were examined on
behalf of plaintiffs and two witnesses were examined on behalf of
defendants.
As regards the will executed on 20.4.1977 (Ex.1), besides
father of plaintiffs PW-2 Premchand, PW-1 Dungardas and PW-4
Shankarlal were examined as its attesting witnesses. As regards
will Ex.5 executed by Smt. Jeevni on 12.2.1996 in favour of
plaintiffs, attesting witnesses PW-3 Sultanmal and PW-5 Anand
Kumar were examined and other attesting witness Bhanwar Singh
is stated to have died. PW-6 Baank Singh was examined on behalf
of the plaintiffs, who has identified the signatures of Bhanwar
Singh on will Ex.5 at mark, ''e'' to ''f'', being his uncle PW-7 Shree
Kishan has also been examined in rebuttal evidence in order to
negate the fact that defendant Devilal was also known as
Dharsimal. It is pertinent to note that none of the plaintiffs were
examined as witness.
On behalf of defendants, defendant Devilal himself was
examined as DW-1 and DW-2 Sheetaldas was examined in respect
of the fact that Devilal was known as Dharsimal also.
Documentary evidence inter alia, the will dated 20.4.1977 (Ex.1),
another will dated 12.2.1986 (Ex.5) and map of disputed property
(Ex.4) were produced on behalf of the plaintiffs. No documentary
evidence was produced on behalf of the defendants.
After hearing both the sides, learned trial Court decided all
the issues mentioned above in favour of plaintiffs in view of the
evidence available on record and proceeded to decree the suit as
stated above.
Aggrieved by the judgment, defendants-appellants have
preferred this appeal. Death of appellant Devilal took place during
pendency of this appeal, hence, his LRs were taken on record.
Learned counsel appearing for the appellants has contended
that learned trial Court has decided all the issues just on the basis
of the statements given by plaintiffs'' witnesses in their
examination in chief. It has not taken care to appreciate the
points raised on behalf of the defendants regarding genuineness of
both the wills. Simpliciter the statements given by attesting
witnesses of the wills cannot be made basis for coming to the
conclusion that the wills were properly executed. His argument is
that it is an admitted case that defendant Devilal, who was also
known as Dharsimal, as his name appeared in the school record,
was also joint purchaser of house No.1 along with Jethmal, which
was purchased through sale deed dated 12.1.1935. Hence,
Jethmal was not competent to execute any will on 20.4.1977 on
his own in favour of Premchand and Smt. Jeevni. Thus, the very
basis of the claim laid by plaintiffs-respondents in regard to the
disputed property is baseless. Learned counsel has further
contended that none of the plaintiffs were examined before trial
Court. This important lacuna in the case of the plaintiffs has been
ignored by the trial Court. It has been further contended that
there is an interpolation by way of adding one line in the printed
text of the will Ex.5. This goes to show that the will is not genuine
and forged one. It has also been averred that when partition
allegedly took place on 20.10.1984 between Smt. Jeevni,
Premchand and Devilal, which has also been referred in the
alleged will Ex.5, there was no occasion to execute the will by
Smt. Jeevni on 12.2.1986. It has also been argued that no
probate was obtained by the plaintiffs in regard to the alleged will
Ex.5. Four boundaries of the property bequeathed by way of will
Ex.1 are also not correct.
Other fold of argument advanced by learned counsel for
appellant is that all legatees of the will Ex.5 were minors at the
time of its execution. It is obvious on perusal of the plaint itself
wherein the age of plaintiff No.1 Magraj has been mentioned as 21
years, that of Suresh Kumar and Narendra is 17 and 10 years
respectively. The suit was filed in the year 1992 whereas the
alleged will Ex.5 was executed about six years ago, i.e. on
12.2.1986. So, the recital made in will Ex.5 that on being pleased
with the services rendered by plaintiffs, the property is being
bequeathed to them is not convincing. It has also been argued by
learned counsel that by way of will Ex.1 and Ex.5, the whole
property owned by father of defendant Devilal namely Jethmal has
been bequeathed to Premchand and his sons to the complete
exclusion of Devilal and his sons. This itself is sufficient to create
doubt about the genuineness of these wills. It has also been
argued that in various criminal cases lodged between the parties,
there had been no reference of the disputed will dated 12.2.1986,
which also creates doubt about its genuineness. Learned counsel
has also relied upon following judgments in support of his
arguments :-
(1) V.M. Shah V/s State of Maharashtra and Ors., reported in 1996 AIR 339.
(2) K.G. Premshankar V/s Inspector of Police and Anr., reported in 2002 (2) WLC (SC) Criminal p.647
(3) H. Venkatachala Lyengar V/s BN Thinmmajamma and Ors., reported in AIR 1959 SC 443
(4) Dr. Mahesh Chand Sharma V/s Raj Kumari Sharma, reported in (1996) 8 SCC 128
(5) Bharpur Singh V/s Shamsher Singh, reported in AIR 2009 SC 1766
(6) S.R. Srinivasa Vs. S. Padmavathamma, reported in
(2010) 5 SCC 274.
Per contra, learned counsel appearing for the respondents
has argued that all the contentions raised by the other side are
frivolous and baseless. Both the wills Ex.1 and Ex.5 have been
properly proved in view of the provisions contained in Indian
Evidence Act and Succession Act . Attesting witnesses have clearly
stated about the execution of the wills by Jethmal and Smt. Jeevni
respectively in their presence. Taking these facts into
consideration, learned trial Court has come to the conclusion that
the wills are properly proved. Suspicion about the genuineness of
the wills are baseless. Hence, the appeal is liable to be dismissed
while upholding the judgment passed by learned trial Court.
On the application preferred under Order 41 Rule 27 read
with Section 151 CPC by the appellants, an order was passed by
this Court on 21.11.2016 to decide the same at the time of
judgment of the appeal itself. It will, thus, be appropriate to
decide the said application first.
On perusal of the documents annexed with the application, it
is obvious that except Annexure-3 and 6 which are invitation card
of marriage and copy of the memorandum dated 20.10.1984
written between Devilal, Premchand and Smt. Jamna Bai
respectively, all other documents pertain to the criminal cases filed
by both the sides against each other and the orders passed
thereon. It is to be noted that learned counsel for the appellants
himself has contended that the findings of the criminal Court are
not binding on civil Court, despite that learned trial Court, while
wrongly relying upon the judgment passed by criminal Courts, has
arrived at the conclusion with regard to issue No.4 that defendants
forcibly came into possession of the disputed house on 13.5.1997.
He has also relied upon the judgments in case of V.M. Shah
(supra) and K.G. Premshankar (supra).
In view of the arguments advanced by learned counsel for
the appellants as also the established legal principle as enunciated
in the above cited judgments that the judgments passed in
criminal matters cannot be considered to have binding effect on
the civil litigation between the parties, this Court is of the
considered view that the documents besides Annex.3 and 6 are of
no relevance in the present appeal. Further, Annexure-3 is
invitation card for marriage, which does not have any direct
bearing on the matter in dispute. Secondly, all these documents
pertain to the year 2000 i.e. prior to the judgment pronouncement
by learned trial Court on 22.1.1997. No reason has been assigned
by learned counsel for the appellants for not producing these
documents on earlier occasion. None of these documents can be
said to be not within the knowledge of the appellants or that they
could not have been obtained by them earlier with due diligence.
So far as memorandum dated 20.10.1984 is concerned, reference
to it has been made in the will in question Ex.5. So, this
document has got an important bearing on the genuineness of the
will Ex.5. Hence, only this document is allowed to be taken on
record. But in respect of all other documents, the application filed
under Order 41 Rule 27 CPC is rejected in view of above
discussion.
Now adverting to the judgment impugned, it appears that
issues No.1, 3, 7 and 8 are the basic issues relating to
genuineness of the wills in question Ex.1 and Ex.5 as also
regarding the competence of the testator/testatrix to execute the
will. All these issues have been found proved by learned trial
Court in favour of the plaintiffs respondents. On scanning of the
judgment passed by learned trial Court in regard to these issues,
it appears that learned trial Court has relied upon the statements
given by PW-1, PW-2 and PW-4 in regard to will Ex.1. PW-1
Dungardas and PW-4 Shankarlal, who are the attesting witnesses
of will Ex.1 and PW-2 Premchand is the legatee. As regards will
Ex.5, attesting witnesses PW-3 Sultanmal, PW-5 Anand Kumar and
PW-6 Baank Singh have been relied upon by learned trial Court to
find the execution of these wills proved. Of course, in routine,
when no arguable question is raised as regards the genuineness of
the will, evidence of attesting witnesses can be considered
sufficient. But in my considered view, when in the matter in hand,
some intricate issues questioning the validity and genuineness of
the wills have been raised by learned counsel for the appellant in
his arguments, these questions are required to be answered.
Learned counsel for the appellant has placed reliance on H.
Venkatachala (supra). Relevant part of the said judgment, which
lays down certain crucial aspects in regard to execution of the will
require consideration which may be reproduced as below :-
"... ... ... Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator''s mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words the onus on the propunder can be taken to be discharged on proof of the essential facts just indicated.
There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder''s case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator''s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the
will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that the said dispositions may not be the result of the testator''s free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
Apart from the suspicious circumstances above referred to in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decision of English Courts often mention the test of the satisfaction of judicial conscience. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be
fully satisfied that it had been validly executed by the testator who is no longer alive.
It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. AIR 1946 PC 156, Rel. on.
It is no doubt true that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but the said presumption is liable to be rebutted by proof of suspicious circumstances. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case : AIR 1929 Cal 484, Ref."
Learned counsel for the appellant has also relied upon the
judgment in case of Bharpur Singh (supra) in which it has been
laid that propounder of the will must offer reasonable explanation
to remove the suspicious circumstances surrounding execution of
the will. The principles enunciated in this judgment are also akin
to the principles laid down in H. Venkatachala Lyengar (supra).
The third case relied upon by learned counsel for the appellant in
this regard is S.R. Srinivasa Vs. S. Padmavathamma (supra)
wherein it has been laid down that if in the absence of alleged
fraud, undue influence, coercion etc. in regard to the execution of
the will, any circumstances surrounding its execution, which may
raise a doubt about the free will of testator, it creates an initial
onus of the propounder to remove all reasonable doubts.
Principles laid down in this case are also identical and based on
the judgment rendered in case of H. Venkatachala Lyengar
(supra). Learned counsel has also further referred to the
judgment in Dr. Mahesh Chand Sharma (supra). The facts of this
case are distinguishable from the facts of the case in hand. In
case of Dr. Mahesh Chandra (supra), will in favour of testators wife
was executed for her life time only and after her death, to legal
heirs of the testator, whereas in the matter in hand, the situation
is different and by way of alleged will Ex.1, the property was
completely bequeathed in favour of Smt. Jeevni. So, the case of
Dr. Mahesh Chandra (supra) does not lay support to the
contention raised by learned counsel for the appellants.
When the evidence available on record is scanned in light of
the principles enunciated as above by Hon''ble Supreme Court in
case of H. Venkatachala (supra), statements of PW-1 Dungardas,
who is an attesting witness of will Ex.1 is important. He has
stated in his statements that at the time of execution of will Ex.1,
Jeevni and Premchand were present besides him and Jethmal. It
is important to note here that only Jeevni and Premchand are
beneficiaries of Ex.1. Other attesting witness PW-4 Shankarlal has
also stated about the presence of Premchand and Jeevni, besides
Jethmal, Dungra and the witness himself. Both these witnesses
have also stated that by way of will Ex.1, both the two houses
were bequeathed in favour of Jeevni and Premchand. It is, thus,
clear that only the beneficiaries of will Ex.1 were present when it
was executed by Jethmal and thus, they apparently took a
prominent part in execution of the said will. It is admitted case
that later on will Ex.5 was executed by Smt. Jeevni in favour of
plaintiffs, who happened to be sons of Premchand in respect of the
house bequeathed by Jethmal to Jeevni through Ex.1. The whole
effect of both these wills Ex.1 and Ex.5 is that both the houses
initially owned by Jethmal came into the ownership of Premchand
and his sons, to the exclusion of other son of Jethmal, namely
Devilal. Both the aspects i.e. presence of beneficiaries only at the
time of execution of will Ex.1 and bequeathing the property owned
by Jethmal in favour of Premchand and his sons to the complete
exclusion of Devilal creates a suspicious circumstance, which was
required to be clarified by the propounders of the will and to be
considered by trial Court in detail.
Another objection raised as regards the validity and
genuineness of will Ex.1 is competence of Jethmal to execute the
same. It has been argued by learned counsel for the appellants
that as per the statement given by DW-1 Devilal, he was also
known as Dharsimal in his childhood. The property purchased
through sale deed dated 12.1.1935 stood in the name of Jethmal
and Dharsimal, so, Jethmal alone was not competent to
bequeath it through Ex.1. Attention has also been drawn to
statement of DW-2 Sheedaldas, who has stated that he knew
defendant Devilal as Dharsimal when he used to study with him
in high school. So, learned counsel for the appellants argued
that will Ex.1 executed by Jethmal alone is not valid. Per contra,
learned counsel for the respondents has drawn attention to the
cross-examination of DW-2 Sheetaldas, who has stated that he
never met Dharsimal after leaving high school. Even then, he
has claimed to recognize the defendant as Dharsimal 4-5
months ago, while sitting on his shop. He has also admitted that
presently age of Dharsimal must be 57-58 years. This
statement does not inspire confidence. It cannot be relied that
Sheetaldas could have identified Devilal addressing him as
Dharsimal after such a long period. Besides this, PW-7 Shree
Kishan has stated that Jetharam had three sons, eldest one was
Devilal, second was Dharsimal and third was Premchand. He
has also stated that second son Dharsimal expired 27-28 years
ago. Devilal was never called as Dharsimal. Evidence of PW-7
Shree Kishan supports the statement of PW-2 Premchand, who
has also stated that Dharsimal expired in early age, who was
third son of Jethmal and Devilal was not known as Dharsimal.
In light of these statements plea taken by learned counsel for
the appellant is not found convincing that Devilal was also
known as Dharsimal and thus, the will Ex.1 executed by Jethmal
alone is not competent. Learned trial Court has also not
accepted this plea in absence of any documentary evidence of
the school record. Had Devilal been admitted in the school in
the name of Dharsimal, that record should have been produced
before trial Court. In above facts, in my considered view, the
plea taken by learned counsel for the appellants is not
convincing on this point.
Learned counsel for the appellants has also contended that
none of the plaintiffs have been examined before the trial Court.
It has further been contended that material discrepancy as
regards the four boundaries of the property bequeathed by will
Ex.1 has appeared in the cross-examination of PW-2 Premchand
and other witnesses. Thus, the plaintiffs have failed to prove the
facts averred in the plaint. It is important to note that no
reason has been explained on behalf of the respondents for not
examining the plaintiffs during trial. Further, on perusal of the
cross-examination of PW-2 Premchand and attesting witnesses
of Ex.1 i.e. Dungardas and Shankarlal, there appears vital
discrepancy in regard to the description of the property
bequeathed. Examination of plaintiffs could have been helpful to
clarify the discrepancy as stated above. In my view, non-
examination of any of the plaintiffs and the discrepancy in
regard to the description of property is a serious lacuna in the
case of plaintiffs. Learned trial Court has committed an error in
not taking this fact into consideration.
As argued by learned counsel for the appellants,
circumstances giving rise to suspicion about will Ex.5 are more
important to be considered as this is the will through which the
plaintiffs have been bequeathed the property, which is the subject
matter of dispute. On bare perusal of Ex.5, it is found that one
line has been interpolated in the text of this will. Though, learned
counsel for the respondents has argued that this line was not
interpolated after-wards but was added into the will at the time it
was printed and prior to its execution. He has further contended
that interpolated line makes reference to the partition of the
house in favour of Jeevni, which has been further referred in the
next line itself. So, the effect of the alleged interpolation is
nullified. The argument raised by learned counsel for the
respondents appears to be convincing after taking the inserted
line and the next line into consideration, which are as follows : -
"VERNACULAR MATTER OMITTED"
This argument is further strengthened by this fact that by
way of application filed under Order 41 Rule 27 CPC, appellants
themselves have produced this partition deed dated 20.10.1984.
But this gives rise to a reasonable query that when by way of
will Ex.1 executed on 20.4.1977, the said house had already been
bequeathed in favour of Jeevni by Jethmal, what was the occasion
to make this partition deed on 20.10.1984. Further, it gives rise
to another query as to whether execution of will Ex.5 was done by
Jeevni on the strength of will Ex.1 or partition deed ? If the house
purchased by Jethmal in the year 1942 had already been
bequeathed by him in favour of Jeevni by way of will Ex.1, no
occasion could have arisen for its partition on dated 20.10.1984.
So, making reference of the partition deed dated 20.10.1984 in
Ex.5 creates a doubt as to on which basis Smt. Jeevni finds herself
competent to execute this will Ex.5. In this background,
another contention raised by learned counsel for the appellant
becomes all the more important that why no probate was obtained
by the appellants in respect will Ex.5.
Further, recital of will Ex.5 says that the properties are being
bequeathed in favour of Magraj, Suresh Kumar and Narendra -
sons of Premchand by Smt. Jeevni on being happy with the
services and care extended by them to her. Execution of this will
was made on 12.2.1986. On perusal of the plaint, filed in the year
1992, it appears that age of Magraj, Suresh Kumar and Narendra
is mentioned to be 21, 17 and 10 years respectively. It goes to
show that at the time of execution of will Ex.5 six years ago, i.e.
on 12.2.1986, they were almost 15, 11 and 4 years respectively.
So, the fact mentioned in the will that being happy and satisfied
with the services rendered by them, the property is being
bequeathed in their favour does not appeal to logic. However, it
may be argued that the legatees being grand sons of Jeevni, out
of love and affection, the property could have been bequeathed in
their favour. But then, the query crops up as to why both the
properties purchased by Jethmal in the year 1935 and 1942 were
bequeathed to Premchand and his sons while excluding his second
son Devilal and his descendants. In light of the principles laid
down by Hon''ble Supreme Court in the case of H. Venkatachala
(supra), this gives rise to suspicion about genuineness of Ex.5.
On perusal of impugned judgment, it comes out that this aspect
has not at all been considered by learned trial Court which actually
required deep probe and examination.
In light of the discussions made above, I am of the view that
the conclusion drawn by learned trial Court on the vital issues
No.1, 3, 7 and 8 does not appear to be convincing and are liable
to be quashed and set aside.
Issue No.2 is consequential and dependent on Issue No.1.
When the will Ex.1 is found surrounded by suspicious
circumstance, Smt. Jeevni cannot be treated to have become
absolute owner of the property bequeathed in her favour by
Jethmal through will Ex.1. So, finding of learned trial Court on
this issue is also wrong. Issues No.4, 5, 6 and 9 were connected
with each other, mainly depending upon the fact whether the
defendants were not entitled to be in possession of the ground
floor and first floor of the disputed house. When execution of will
Ex.5 is not found genuine on account of suspicious circumstance
surrounding it, defendants could have not been excluded from the
possession of the said house. This fact has come in oral evidence
as also in partition deed dated 20.10.1984 that prior to and at the
time of death of Smt. Jeevni, Devilal was residing with her in the
disputed house. Thus, it cannot be inferred that defendants forcibly entered into the disputed house on 30.05.1987 and are
thus liable to pay the amount of Rs.10,800/- as compensation and
to vacate the disputed property. Thus, findings recorded by
learned trial Court in regard to these issues are also erroneous
and liable to be set aside. No arguments have been advanced by
learned counsel for the appellants regarding finding on issue
No.10, which pertains to the valuation of the suit property and
insufficiency of the court-fees paid by the appellants. So, the
finding of learned trial Court in this regard is maintained.
However, in light of above discussion, this has no bearing on the
result of this appeal.
In light of the discussions made above, the appeal is liable to
be allowed and is accordingly allowed. The judgment and decree
dated 22.1.1997 passed by the trial Court is quashed and set
aside.