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2012 DIGILAW 45 (CHH)

VAMAN KUMAR NAMDEO v. BHURWA SATNAMI

2012-02-02

T.P.SHARMA

body2012
JUDGMENT 1. By this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short 'CPC'), the appellant has challenged legality and propriety of the judgment and decree dated 29.1.96 passed by the 4th Additional Judge to the Court of District Judge, Raipur, in Civil Appeal No.15A/94, reversing the judgment & decree dated 27.11.92 passed by the 5th Civil Judge Class II, Raipur, in Civil Suit No.22A/89, whereby suit for possession filed on behalf of original plaintiff Puran has been dismissed. While reversing the judgment & decree of the trial Court, the lower appellate Court has decreed the suit for possession. 2. The present second appeal has been admitted for consideration on 9.12.96 on the following substantial question of law: "Whether on the facts and in the circumstances of the case, the will on which reliance is placed by the respondent is proved to be properly executed and attested in accordance with law?" 3. As per case of original plaintiff Puran, he was recorded Bhumiswami of khasra No.328 situated at Pandari Para, area 0.032 hectare. The present appellant/defendant started construction over the suit property in March, 1987 it was objected by original plaintiff Puran. Notice dated 28.10.88 was served upon the appellant, but he did not vacate the possession of the suit property. Thereafter suit for possession and cost of the suit was filed on 2.1.1989. The present appellant has denied the adverse allegation and has specifically claimed that he has purchased the suit property from Chhotelal on consideration of Rs.5150/- on 7.1.1989 vide registered sale deed after obtaining permission from the Collector. The appellant has not encroached the land of original plaintiff Puran. After providing opportunity of hearing to the parties, the 6th Civil Judge Class-II, Raipur has dismissed the suit. Same was challenged before the lower appellate Court and the lower appellate Court while reversing the judgment and decree has decreed the suit. 4. I have heard learned counsel for the appellant, perused the impugned judgment & decree, judgment & decree of the trial Court and records of the Courts below. SPC has been served upon the respondent, but he has not made his appearance. 5. As per original suit filed on behalf of plaintiff Puran, suit was simplicitor suit for possession after dispossession by the plaintiff from the present appellant over Bhumiswami land bearing khasra No.328. SPC has been served upon the respondent, but he has not made his appearance. 5. As per original suit filed on behalf of plaintiff Puran, suit was simplicitor suit for possession after dispossession by the plaintiff from the present appellant over Bhumiswami land bearing khasra No.328. During pendncy of the suit original plaintiff Puran died and his brother Bhurwa, present respondent has impleaded as plaintiff. As per his evidence, Puran has acquired the property from his wife Sukriya Bai. After death of Sukriya Bai and Puran, land has been recorded in his name. Puran has executed some document in his favour. He has not deposed anything about execution of will in his favour, although his witness advocate R.K.Diwan (PW-3) has deposed that Sukriyabai has executed will Ex.P/2 in favour of Puran and Puran has executed will dated 25.5.88 which was registered on 27.5.88 vide Ex.P/3. As per his evidence, Puran has singed over will, he has also signed as A to A. Amar Singh (PW-5) has deposed that Puran has executed will in favour of the respondent and he has signed over the said will. Except this evidence the respondent has not adduced any evidence relating to will, even the respondent himself has not stated anything about execution of will by Puran in his favour. 6. As per evidence of R.K.Diwan (PW-3), Puran has executed will and Ex.P/3 bears his signature as B to B and C to C, his signature also bears in Ex.P/3 as A to A. As per his evidence, he was Advocate. He has not deposed that Puran has signed on the will before him and he has also signed before Puran i.e. he has not deposed anything relating to execution of will and its attestation. Amar Singh (PW-5) has also not deposed anything relating to attestation of will. Respondent Bhurwa has neither pleaded nor deposed anything relating to existence of any will. These evidence are not sufficient for proving the proper execution and attestation of will in accordance with law. 7. As per plaint allegation, dispossessed Bhumiswami has filed suit for possession on the basis of previous dispossession before the civil Court. As per Section 250 read with Section 257 (x) of the C.G. Land Revenue Code, 1959 (for short 'Code'), claim of any reinstatement of a Bhumiswami improperly dispossessed was barred. 7. As per plaint allegation, dispossessed Bhumiswami has filed suit for possession on the basis of previous dispossession before the civil Court. As per Section 250 read with Section 257 (x) of the C.G. Land Revenue Code, 1959 (for short 'Code'), claim of any reinstatement of a Bhumiswami improperly dispossessed was barred. As per plaint allegation, the appellant has constructed the house, but no relief for possession after demolition of the structure has been claimed. Plaint has also not valued for the purpose of demolition of structure. It was also not suit for possession after dispossession within six months from the said dispossession in terms of Section 6 of the Specific Relief Act. In these circumstances, even on the date of filing of the plaint, suit as framed was not maintainable in terms of Section 250 read with Section 257 (x) of the Code and Section 6 of the Specific Relief Act. 8. Consequently, substantial question of law formulated for the decision of this appeal is decided as negative. On the basis of finding on substantial question of law formulated for the decision of this appeal and considering the aforesaid legal aspect, suit ought to have been dismissed. Consequently, the appeal deserves to be allowed and is hereby allowed. Judgment & decree passed by the 4th Additional Judge to the Court of District Judge, Raipur in Civil Appeal No.15A/94 are hereby set aside and judgment & decree passed by the 5th Civil Judge Class-II, Raipur, in Civil Suit No.22A/89 are hereby restored. 9. Parties shall bear their own cost. 10. Advocate fee as per schedule. 11. Decree be drawn accordingly. Appeal Allowed.