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Madhya Pradesh High Court · body

2013 DIGILAW 752 (MP)

Munnalal v. Komal

2013-07-03

N.K.Gupta

body2013
JUDGMENT 1. In Civil Suit No.31-A of 2010 a decree of declaration, possession and injunction was passed against the appellant by the learned Civil Judge Class II, Raisen vide judgment and decree dated 30.10.2012 relating to land bearing Survey No.591, area 4.94 acres situated at Village Shahpura, District Raisen. In Appeal No.12-A/2012 the learned Second Additional District Judge, Raisen vide judgment dated 18.2.2013 dismissed the appeal. Being aggrieved with the judgments and decrees passed by both the Courts below the appellant has preferred the present second appeal before this Court. 2. Before the trial Court the respondents/plaintiffs No.1 to 6 have moved a civil suit that the land bearing Survey No. 591, area 4.94 acres was registered in name of one Chironjilal, husband of the plaintiff no.1 and father of the remaining plaintiffs. On 17.10.2008 Chironjilal expired. After his death when the plaintiff no.2 had tried to sow the crops in that land then the appellant stopped him that the land was given to him on lease by Chironjilal, for an year and therefore, after taking the crop of that land, he would release the possession. However, he did not leave the land and therefore, a suit was filed for declaration, possession and injunction. 3. The defendant no.1/the appellant in his written statement denied the claim of the plaintiffs. He took a plea that one Will was executed by the deceased in favour of the appellant and therefore, the appellant was in possession of the land, being owner of the land. Under such circumstances, it was prayed that the suit may be dismissed. 4. The learned Civil Judge after framing of the issues, recording the evidence and hearing the learned counsel for the parties decreed the suit as mentioned above. The appeal filed by the appellant was also dismissed. 5. I have heard the learned counsel for the appellant at length. 6. After considering the pleadings, evidence and submissions made by the learned counsel for the appellant, it is apparent that initially the land was of one Chironjilal, whose wife and children are the respondents No. 1 to 6 and therefore, on death of Chironjilal, being his legal representatives, the plaintiffs were the owners of the land left by the deceased. 6. After considering the pleadings, evidence and submissions made by the learned counsel for the appellant, it is apparent that initially the land was of one Chironjilal, whose wife and children are the respondents No. 1 to 6 and therefore, on death of Chironjilal, being his legal representatives, the plaintiffs were the owners of the land left by the deceased. It was the specific plea of the defendant/appellant that he got the possession of the land on the basis of Will and therefore, if it is proved that a valid Will was executed by the deceased Chironjilal in favour of the appellant then the plaintiffs could be ousted from the property. There are so many defects found by both the Courts below in the Will. If such defects are considered then it would be apparent that the appellant could not prove that it was the self earned property of the deceased Chironjilal. If it was an ancestral property then Chironjilal could execute a Will in favour of the appellant only for his share. He could not execute the Will for the shares of the plaintiffs. Second draw back in the Will is that it was for the witnesses to prove that the Will was read before the deceased and he appended his signature on the Will then the witnesses appended their signatures on the Will. No such certificate is given on the Will itself. If the evidence given by the witnesses Kailash (DW2) and Arjun Singh (DW3) is perused then both of them have accepted that that they did not know as to how the Will was prepared. They appended their signatures on the Will. Arjun did not claim that he read the Will and appended his signature. He has also submitted that he appended his signature along with he witness Kailash. In the statements both of them did not say that the Will was read over to the deceased Chironjilal or Chironjilal appended the signature on the Will in their presence. If the witnesses of Will do not make it clear that the author of the Will appended his signature on the Will before the witnesses then by procedure adopted for the execution of Will as told by the witnesses, it cannot be said that the will was executed by the deceased Chironjilal. If the witnesses of Will do not make it clear that the author of the Will appended his signature on the Will before the witnesses then by procedure adopted for the execution of Will as told by the witnesses, it cannot be said that the will was executed by the deceased Chironjilal. Since, it is no where proved that the deceased Chironjilal appended his signature upon the Will Ex.D/1. Evidence given by the witnesses Kailash and Arjun Singh was of no use to prove the Will. Will was not proved by these two witnesses. 7. Under such circumstances, it was necessary for the appellant to prove the signature of the deceased on the Will by comparison of his signature with authentic signature of the deceased on some other document but, no such expert was either referred or examined by the appellant. 8. Thirdly, if Will Ex.D/1 is perused then it would be apparent, that at 5-6 places white ink was used and some modification was done in the name of the places. For example in the address given for the deceased Chironjilal some other village was mentioned and thereafter, by modification the word “Kagpur” was added. Similarly, in paras 4-5 name of the villages were changed. After modification, it is apparent that in para 5 instead of village “Shahpur” the word “Rampura” was used whereas there was no property of the deceased in Village Rampura. If the Will was prepared by the deceased himself then such type of mistakes could not creep up. Also, the deceased Chironjilal did not append his signatures on corrections made in the Will. If paras 4 and 5 are perused then it would be apparent that it was mentioned in the will the the property of village “Kagpur” would be of the legal representatives of the deceased Chironjilal and in para 5 it is mentioned that the property of the Village Shahpur (by mistake it is mentioned as “Rampura”) would be of his successors. Under such circumstances, it is apparent that no conclusion can be drawn by the document Ex.D/1 that the property at Shahpura was given to the appellant. 9. Under such circumstances, the appellant could not prove the Will Ex. D/1 that it was executed by the deceased Chironjilal. Under such circumstances, it is apparent that no conclusion can be drawn by the document Ex.D/1 that the property at Shahpura was given to the appellant. 9. Under such circumstances, the appellant could not prove the Will Ex. D/1 that it was executed by the deceased Chironjilal. A strange sentence is also mentioned in the Will that the property which is given by the deceased to his legal representatives shall be intact and there Will be no right to the appellant to claim that property. The appellant tried to show that he was step brother of the deceased Chironjilal and therefore, he was claiming an ancestral property whereas, it is apparent from the statements of the various witnesses that the appellant was not the step brother of the deceased but, he was the uterine brother. The mother of the deceased Chironjilal, after death of her husband entered into contract of marriage with father of the appellant. If the mother of the deceased Chironjilal was married with father of the appellant, then the appellant would be the uterine brother of the deceased Chironjilal and as such as his mother married with his father she lost all her rights in the property of father of the deceased Chironjilal and therefore, if the appellant was born to the mother of the deceased Chironjilal, he did not get any interest in the property left by father of the deceased Chironjilal and therefore, there was no possibility of any interference in any property of father of Chironjilal. Under such circumstances, the sentence written in the Will (as shown above) indicates that the Will was prepared by the appellant and it was not executed by the deceased Chironjilal. 10. The will was written in the year 1996 then the appellant must be in possession of the suit property since the year 1996. It was for him to submit the copy of revenue records to show that he was in possession of the property since the year 1996 but the appellant did not file a single document relating to his possession. Under such circumstances, an adverse inference would be drawn that if any revenue document was filed it would have not been in favour of the appellant. Under such circumstances, there was no possibility that the deceased Chironjilal had executed such a Will. Under such circumstances, an adverse inference would be drawn that if any revenue document was filed it would have not been in favour of the appellant. Under such circumstances, there was no possibility that the deceased Chironjilal had executed such a Will. The appellant could not establish his title on the suit property by way of a Will. Therefore, the respondents No.1 to 6 being legal representatives of the deceased Chironjilal were entitled for the property left by the deceased Chironjilal hence, both the Courts below did not commit any mistake in passing a declaratory decree along with the relief of possession and injunction. There is no basis by which the appeal filed by the appellant can be accepted. Consequently, it is hereby dismissed with costs at the motion stage. The appellant shall bear his own cost in the present appeal. 11. Copy of the order along with the appellate decree (if any) be sent to to both the Courts below along with their records for information and compliance. ..............