Vandana Malviya vs Lolli @ Jageshwar Kahar

Heard on admission.

This second appeal has been filed by the appellant/plaintiff under Section 100 of the Code of Civil Procedure being aggrieved by the impugned judgment and decree dated 6.2.2019 passed by 3rd Additional District Judge, Rewa in Civil Appeal No.27A/2016, affirming the judgment and decree dated 13.7.2012 passed by 6th Civil Judge Class-II, Rewa in Civil Suit No.26-A/2009, whereby the learned Civil Judge dismissed the suit.

The plaintiff/appellant has filed the original suit for dispossession of defendant/respondent from the disputed house No.41/23 constructed on plot no.5552 area admeasuring 0.05 acre situated at Bhairav Marg, Bichhiya, Tahsil Huzur, District Rewa, which was registered as Civil

Suit No.26-A/2009. The suit was contested by defendant/respondent. The suit was dismissed by 6th Civil Judge Class-II, Rewa vide judgment and decree dated 13.7.2012. Against the said judgment and decree plaintiff/appellant filed an appeal, which was also dismissed vide judgment and decree dated 6.2.2019. Hence, this second appeal.

The original owner of the house was Late Rajeev Lochan, which he purchased through registered sale deed dated 2.8.1957. There is ample evidence on record that the said house was bequeathed by Late Rajeev Lochan to defendant/respondent Jageshwar Kahar through registered will dated 8.4.1996. Defendant/respondent Jageshwar Kahar and one of the witness Prakash Narayan (D.W.3) have been examined and they have supported the execution of the said will in favour of defendant/respondent.

The plaintiff/appellant has claimed the disputed house on the basis of inheritance. She claims herself to be the granddaughter of Late Rajeev Lochan. There is no documentary proof on record that the lady namely; Daya Malviya was daughter of Late Rajeev Lochan, of which plaintiff/appellant Vandana Malviya claims to be daughter. It is specifically mentioned in the said will dated 8.4.1996 Ex.D-2 that on the date of executing the will Late Rajeev Lochan's wife and daughter had already expired and there is no legal heir of Late Rajeev Lochan, the person who executed the will. Surprisingly plaintiff/appellant has not filed any document which shows that she is the daughter of Smt.Daya Malviya, who was daughter of Late Rajeev Lochan. Otherwise also if the plaintiff's version is taken as true that she is granddaughter of Late Rajeev Lochan, then too it will not help the plaintiff/appellant because the said property was self acquired property of Late Rajeev Lochan and he was having the right to pass over it to anybody according to his will.

During the course of argument, learned counsel for appellant has raised some dispute regarding the number of the house by arguing that there is no mention about the number of the house in the said will and the said will appears to be executed for some other property.

It is pertinent to mention that in the said will the house No.17 (Old No.123) situated at ward No.41 (Old 10) is mentioned, which is situated at Bhairav Marg, Bichhiya, Tahsil Huzur, District Rewa. No evidence is produced by the plaintiff/appellant that in the said vicinity some other house belonging to Late Rajeev Lochan was in existence at the time of execution of the said deed of will.

Considering the aforesaid, it appears that the will dated 8.4.1996 (Ex.D-2) appears to have been executed by Late Rajeev Lochan regarding disputed house constructed on the land mentioned above, in favour of defendant/respondent. Therefore, the learned trial Court after evaluating the evidence has rightly dismissed the suit filed by the plaintiff/appellant. The learned first appellate Court after evaluating the evidence has rightly held that the findings of the learned trial Court are based on evidence available on record and no perversity or illegality has been committed by the learned Court below.

In case of Guruvachan Kaur Vs. Salikram [(2010) 15 SCC 530], it was held that it is settled law that, in exercise of powers under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the findings of fact, recorded by the first appellate Court which is the final Court of fact, unless the same is found to be perverse, which is discussed by Hon'ble the Supreme Court in case of Damodar Lal Vs. Sohan Devi and others [(2016) 3 SCC 78], wherein Hon'ble the Supreme Court has held that even if the finding of fact is wrong, that by itself will not constitute a question of law.

In view of aforesaid discussion and principles laid down by the Hon'ble Supreme Court, I do not find any illegality or perversity to interfere with the concurrent findings of fact arrived at by learned trial Court and the first appellate Court. After hearing the counsel and on going through the record, there appears to be no substantial question of law involved in this appeal.

Consequently, the appeal being devoid of merit, is accordingly dismissed, at admission stage.