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2014 DIGILAW 1893 (RAJ)

Abdul Hafij v. Kamla

2014-11-25

NISHA GUPTA

body2014
JUDGMENT 1. - This second appeal under Section 100 CPC has been filed against the judgment and decree dated 25.5.2012 passed by Addl. District Judge (Fast Track), Sawaimadhopur in First Appeal No. 101/2009 (26/2006) confirming the judgment and decree dated 28.3.2006 passed by Civil Judge (Junior Division), Sawaimadhopur in Civil Suit No. 143/2001. 2. The brief facts leading to filing of this second appeal are that the plaintiff -respondents filed a suit for declaration of Will dated 10.3.92 as null and void and for injunction against the defendant appellant not to interfere in the possession of the plaintiff respondents. The appellant defendant also filed a counter-claim stating therein that Kastoori died on 28.12.2000 and she has executed a registered Will in favour of the present appellant and decree sought for to declare the Will dated 10.3.92 as valid and to restrain the plaintiff respondents from interfering with the possession of the appellant. After hearing the parties, the court below has decreed the suit in favour of plaintiff respondents declaring the Will dated 10.3.92 as null and void and also passed permanent injunction against the appellant defendant not to interfere in the possession of the plaintiff respondents. The appeal has been filed which has also been dismissed, hence this second appeal. 3. Heard the learned counsel for the parties and perused the judgments and decree under appeal as well as the original record of the case. 4. The only contention of the appellant is that findings on issue No. 1 and 3 are per verse and facts pleaded in the suit were never been proved before the court below as both the plaintiff respondents have not appeared before the court below and his further contention is that he has proved the Will dated 10.3.92, hence it should be declared valid.On the other hand, the contention of the plaintiff respondents before the court below was that Kastoori never executed any Will in favour of appellant and both the courts below have declared the Will dated 10.3.92 as null and void. 5. The first contention of the plaintiff respondents is that plaintiff never appeared before the court below, hence issue No.1 should not be decided in favour of plaintiff respondents. 5. The first contention of the plaintiff respondents is that plaintiff never appeared before the court below, hence issue No.1 should not be decided in favour of plaintiff respondents. The contention was that the Will is forged one and it is in the special knowledge of the plaintiffs and when they have not appeared before the court below as witness, the fact has not been proved and only on this count, the appeal should be allowed and reliance has been placed on Janki Vashdeo Bhojwani & Anr. v. Indusind Bank Ltd. & ors., AIR 2005 SC 439 where law as regards to appearance of power of attorney holder as witness has been examined and it has been held that power of attorney holder cannot depose in place and instead of principal but if he has any personal knowledge about the particular facts, he could depose on his personal knowledge. Here in the present case, it is an admitted fact that both the plaintiffs have not appeared before the court below but Roop Narain (PW/1) husband of plaintiff Geeta and Satya Narain (PW/2) husband of plaintiff Kamla have appeared before the court below and they have categorically stated that they have the knowledge about the facts of the case. PW/1 Roop Narain has specifically stated that Geeta Devi has purchased the property through her from the power of attorney holder of Kamla Devi. PW/2 Satyanarain also stated that he has knowledge of the facts of the case and PW/1 Roop Narain has also testified the affidavit on his personal knowledge. Apart from it, Section 120 of the Evidence Act is total answer to the objections raised by the appellant wherein it has been provided that in all civil proceedings, the husband or wife of any party to the suit shall be competent witnesses. In the present matter, PW/1 Roop Narain and PW/2 Satyanarain are not only power of attorney holders of plaintiff respondents but are also husband of the plaintiffs and apart from it, they are having personal knowledge about all the transactions and contention of the appellant that in absence of plaintiffs, the suit should not have been decreed, has no legs to stand as both the courts below were concurrent on the findings that non-examination of plaintiffs as witness not in any way affect the merits of the case. 6. 6. Issue No. 1 as regards the Will dated 10.3.92 has been decided concurrently in favour of plaintiff respondents and both the courts below categorically held that appellant has failed to prove the Will dated 10.3.92 as no attesting witness has been examined in support of the Will. It has also been held that Kastoori was the owner of the property along with other co-sharers. Agreement dated 23.6.97 has also been proved. The appellant has also admitted his signatures on the same. The other fact which has been rightly considered by the Court that deceased Kastoori has executed a Will in favour of Ashok dated 16.9.85 and there is no narration of Will dated 16.9.85 in the forged will dated 10.3.92 and after considering the merits of the case, both the courts below have concurrently held that the Will dated 10.3.92 is null and void and rightly allowed the prayer in favour of the plaintiff respondents.No substantial question of law could have been raised in the second appeal and the appeal is liable to be dismissed.In the result, the appeal fails and is dismissed.Appeal Dismissed. *******