Ram Kunwar and Others vs Bansi and Others

Rohit Arya, J.

This appeal by defendants under Section 100 CPC is directed against the judgment and decree dated 19/2/2007 in civil appeal No. 19A/2006 confirming the judgment and decree dated 13/3/2006 in civil suit No. 43A/2005. Plaintiffs'' suit for declaration and permanent injunction has been decreed and counter claim for declaration and permanent injunction filed by defendants no.1 to 3 has been rejected.

Admitted facts are to the effect that the suit land is an agricultural land, as described in para 2 of the impugned judgment, and over 2/3rd part thereof plaintiffs no.1 and 2 and over 1/3rd part defendants no.1 and 2 are the Bhoomiswami and in possession. Defendant no.1 is the wife of Kunja and defendant no.2 is the daughter of Kunja, defendant no.3 is the subsequent vendee, who acquired right, title and interest of suit land by registered sale deed dated 27/6/2005 executed by defendants no.1 and 2 to the extent of 1/3rd of survey no.749. Plaintiffs no.1 and 2 are the real brothers of Kunja.

Plaintiffs filed a suit after the death of Kunja on 21/10/2004. Plaintiffs and Kunja have been in possession of the suit land to the extent of 2/3rd and 1/3rd with right, title and interest therein. Kunja did not maintain good health and was being looked after by plaintiffs as his wife defendant no.1 had left Kunja for last 16-17 years and residing at Gwalior. She had virtually abandoned him and there was no marital relationship between the two. Only one child; defendant no.2-Sunita, was born out of the marriage of Kunja and defendant no.1. In fact defendant no.2 was reared up by plaintiffs. Her marriage was also solemnized by plaintiffs incurring expenditures. After marriage, defendant no.2 started residing in her in-laws'' house at Gwalior. At the time of death Kunja was living with defendants. Defendants had performed last rites of Kunja. During his lifetime Kunja in suitable state of physical and mental condition had executed a Will dated 24/9/1997 bequeathing 1/3rd of the share of suit the property in favour of plaintiffs and defendant no.2. Accordingly, after the death of Kunja, plaintiffs in addition to 2/3rd share also acquired half of 1/3rd and became owner and in possession thereof. Remaining half of Kunja''s share was of the ownership of defendant no.2. Defendant no.1 had no right, title and interest over the suit property. Defendants no.1 and 2 despite having knowledge of the aforesaid Will manipulated the revenue records in collusion with the revenue authorities and got their names mutated to the extent of 1/3rd of the suit land and sold an area of 3.23 hectare of survey no.749 to defendant no.3 by registered sale deed dated 27/6/2005 under the pretext that there was Wahmi Bantwara between the plaintiffs and defendants no.1 and 2, whereas there was no such Wahmi Bantwara. Under such circumstances, plaintiffs brought a suit for declaration of being the owner of the half of the 1/3rd in addition to 2/3rd share of the suit land with further declaration that the sale deed dated 27/6/2005 is null and void as against the plaintiffs. Defendant no.3 has no right, title and interest over the suit land to the extent of share of the plaintiffs totaling 8/9th part of the suit land. The sale deed is valid only to the extent of 1/9th of the suit land i.e. of the share of defendant no.2.

Defendants filed written statement and denied plaint allegations. It is denied that defendant no.1 had been living separately from Kunja. Since her parents house was at Gwalior, therefore, she has been frequently visiting to Gwalior, but it has been denied that for last 15 years preceding to the death of Kunja she had no marital relationship with him or not residing with him. It is denied that there was a Will executed by Kunja in favour of plaintiffs, as he was not keeping good mental and physical health. Counter claim was also filed seeking declaration that defendants no.1 and 2 being the natural heir of Kunja are entitled to succeed the share to the extent of 1/3rd of the entire land after his death. With the aforesaid pleadings, suit was prayed to be dismissed and counter claim to be decreed.

The trial court, on aforesaid pleadings, framed issues and allowed parties to lead evidence. Upon critical evaluation of evidence on record, the trial court decreed the suit and dismissed the counter claim. On appeal, the first appellate court has re-appreciated the entire evidence on record. The assertion of the plaintiffs that Kunja was residing with them and was being looked after by plaintiffs, after his death last rites were performed by plaintiffs, defendant no.2 was brought up in the family of plaintiffs and was married from the house of plaintiffs and defendant no.1 had left the house of Kunja, besides there was no matrimonial relationship between them, have been supported by PW-2, PW-3 and PW-4.

As regards execution of the Will, the first appellate court has discussed the oral and documentary evidence in paragraphs 19 and 20 of the impugned judgment and found that Kunja was in a fit mental and physical condition to speak, hear and understand the conversations, contents of Will prepared by an advocate was read over to him, he had understood the same and thereafter in presence of attesting witnesses he had put his thumb impression on the Will Ex.P/2. Deposition of attesting witness PW-3 is critically examined in that behalf, besides the Notary Shri Haridas Gupta, PW-5, before whom Will was notarized. On the other hand evidence of defendant no.1 (DW-1), her brother DW-2 has also been examined in paragraphs 21 and 22 and it has been found that there is inconsistencies and inherent contradictions in the statement of DW-1 in chief and in cross examination, as in chief she has deposed that for last 9-10 years Kunja was not keeping good mental and physical health, whereas in cross examination she admitted that there was only digestive problem and acidity to Kunja. Besides, other piece of evidence have also been dealt with threadbare in paragraphs 22 and 23 and thereafter the first appellate court confirmed the findings of the trial court.

Having gone through the impugned judgment and decree passed by the courts below, in the opinion of this Court, both the courts below have dealt with the oral and documentary evidence brought on record and recorded concurrent findings of facts, which are impregnable in nature. No question of law much less substantial question of law arises warranting interference in the judgment passed by the courts below under Section 100 CPC. The entire gamut of the matter is in the realm of facts. Accordingly, the second appeal sans merits and is hereby dismissed.