Shivdayal & Ors vs Jagdish & Ors

This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 20.9.2018 passed by Additional District Judge, Pichhore, District Shivpuri in RCA No.100006/2014 thereby affirming the judgment and decree dated 29.1.2014 passed by First Civil Judge Class-II, Pichhore, District Shivpuri in Civil Suit No.13-A/2012.

The necessary facts for the disposal of the present appeal in short are that the respondents No.1 and 2 filed a suit for declaration that they are Bhumiswami and in possession of their 2/7th share in the suit property described in paragraph 1 of the plaint and, accordingly, a permanent injunction was also prayed for restraining the defendants No.1 to 11 from interfering with the peaceful possession of the property in their possession. The appellants apart from denying plaint avernments in their written statement, filed their counterclaim for declaration that they are Bhumiswami and in possession of the entire land and also sought permanent injunction against the plaintiffs from interfering with the peaceful possession of the defendants. short are that Fulla was the Bhumiswami of the land in dispute. It is also not in dispute that Fulla has expired and the father of the defendants No.1 to 10 and husband of defendant No.11 namely Ramkishan has also expired. It is the case of the parties that Fulla had one son namely Baijnath who has already expired and the wife of Baijnath has also expired. Baijnath had three sons namely Jagdish, Omkar and Ramkishan and four daughters namely Ramkali, Bhagwati, Rajabeti and Sona. The defendants No.1 to 11/appellants are the legal representatives of Ramkishan. After the death of Fulla, his sole son Baijnath succeeded the property and after the death of Baijnath, all his legal representatives have obtained 1/7th share in the property in dispute. The defendants No.12 to 15 are the daughters of Baijnath and they are married and as per their wishes all the three brothers are in possession of their share also. Accordingly, it was pleaded that the plaintiffs are in possession of 2/3rd of the suit property whereas the defendants are in possession of 1/3rd of the suit property. It was further pleaded that since Ramkishan was eldest son of the family, therefore, after the death of Fulla he got his name mutated in place of his father Baijnath. Since the appellants were in possession of their respective shares, therefore, they never realized the requirement of mutation of their names. Oral partition has already taken place and after the death of Ramkishan, the defendants No.1 to 11 are in possession of the land which had fallen to the share of Ramkishan. Out of the entire suit land, 2 Beegha, 3 Biswa and 5 Biswansi land is used by the parties for tying their cattles, storing their agricultural equipment, garden etc. In the month of January, 2012 the defendants had threatened the plaintiffs that they would harvest the crop on the basis of the mutation of the name of Ramkishan in the revenue records and accordingly, this suit was filed.

The defendants No.1 to 15 filed their written statement and stated that the plaintiffs are not in possession of the land in dispute. The deceased Fulla during his lifetime had executed a will and by virtue of the will, the defendants No.1 to 11 are in possession of the land in dispute which was never objected by the plaintiffs or anybody else. It was further pleaded that the plaintiffs had never performed any agricultural work during the lifetime of deceased Fulla. The plaintiff No.1 was a Government employee whereas the plaintiff No.2 had interest in doing business and, accordingly, the deceased Fulla had given cash amount to the plaintiff No.2 and had also given 20 Kg. of silver, 1 Kg of gold and Rs.2,00,000/- to each of the plaintiffs and thereafter the will was executed in favour of Ramkishan. Accordingly, the defendants No.1 to 11 also filed their counterclaim for declaration that they are the Bhumiswami and in possession of the land in dispute by virtue of the will.

The Trial Court after recording the evidence of the parties decreed the suit and held that the appellants have failed to prove the execution of the will in accordance with Section 68 of Evidence Act and Section 63 of Indian Succession Act. Thus it was held that the plaintiffs/respondents No.1 and 2 are the Bhumiswami and in possession of 2/7th part of the land in dispute and, therefore, the plaintiffs are also entitled for permanent injunction and the suit has been properly valued and the counterclaim filed by the defendants No.1 to 11/appellants was dismissed.

Being aggrieved by the judgment and decree passed by the Trial Court, the appellants filed an appeal which too has suffered dismissal by judgment and decree dated 20.9.2018 passed by Additional District Judge, Pichhore, District Shivpuri in RCA No.100006/2014.

Challenging the judgment and decree passed by the Court below, it is submitted by the appellants that the appellants have proved the execution of the will. However, he fairly conceded that the attesting witness has not supported the case of the appellants. It is further admitted that the concurrent finding of fact has been recorded to the effect that the appellants have failed to discharge their burden of explaining all the suspicious circumstances which are attached to a will.

While exercising powers under Section 100 of CPC, this Court cannot interfere with the concurrent finding of fact unless and until they are perverse or dehors the record.

The counsel for the appellants could not point out any perversity in the judgment and decree passed by the Courts below. The respondents No. 1 and 2/the plaintiffs themselves have examined Sudama Prasad (PW-3) who was one of the attesting witness of the will. Although this witness was examined by the plaintiffs and, therefore, he has not stated anything in his examination-in-chief about the execution of the will but this witness was cross-examined by the appellants. However, in the cross-examination, this witness has stated that he had signed the document outside the Tahsil Office on the instructions of one Ramnivas, Advocate who had obtained his signatures by saying that the names of three brothers are required to be mutated in the revenue record. He has further stated that his signatures were obtained after the death of Fulla.

In the light of the explanation given by Sudama Prasad (PW-3), this Court is of the considered opinion that since the appellants have failed to prove the execution of the will Ex.D/1 in accordance with Section 68 of Evidence Act and Section 63 of Indian Succession Act, this Court is of the considered opinion that the concurrent finding of fact recorded by the Courts below is based on proper appreciation of evidence. As no perversity could be pointed out by the counsel for the appellants, therefore, it is held that no substantial question of law arises in the present case.

Accordingly, the appeal fails and is hereby dismissed.