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2014 DIGILAW 831 (HP)

Bakshi Ram v. Premi Devi

2014-07-03

RAJIV SHARMA

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JUDGMENT Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 22.11.2007 passed by the Additional District Judge, Fast Track Court, Hamirpur in Civil Appeal No.24 of 2003/RBT No.324 of 2004. 2. “Key facts” necessary for the adjudication of this Regular Second Appeal are that respondents-plaintiffs (hereinafter referred to as the “plaintiffs” for convenience sake) have filed a suit against the appellants-defendants (hereinafter referred to as the “defendants” for convenience sake). According to the plaintiffs, suit land was allotted to Sh. Achhroo son of Sh. Kharkoo by the Collector, Hamirpur on 27.6.1976. He remained in possession of the same. Achhroo had three legal heirs, namely, Bakshi Ram, Suhri Devi and Johgal Ram. Johgal Ram died on 15.4.1995 leaving behind plaintiffs as his legal heirs. Achhroo Ram died intestate on 8.11.1982. After his death, defendant Nos. 1 and 6- Bakshi Ram and Suhri Devi; and Johgal succeeded to his estate. After the death of Johgal Ram, plaintiffs were coming in possession of the suit land as joint owners alongwith defendant Nos. 1 and 6 to the extent of 1/3rd share. Defendant Nos. 1 to 5 in collusion with the revenue staff got the entry of the whole suit land recorded in their favour as joint owners in possession whereas plaintiffs and defendant No.6 were also joint owners in the suit land. They came to know about the wrong entry in the month of July, 2001 when defendants threatened to dispossess them from the suit land. Plaintiffs went to the office of Halqua Patwari and obtained revenue record and thereafter they filed the suit for declaration to the effect that they are joint owners in possession of the suit land to the extent of 1/3rd share and the entry in the revenue record showing defendants No.1 to 5 as exclusive owners in possession are illegal, wrong and not binding upon plaintiffs. 3. Suit was contested by the defendants. According to the defendants, plaintiffs were not in possession of the suit land. They were in possession of the suit land. Achhroo never came in possession of any part of the suit land. Achhroo has not died intestate, but he had executed a registered “will” in favour of defendant No.1 on 7.4.1972. Suit land was mutated in favour of defendant No.1. He has been coming in possession of the same. They were in possession of the suit land. Achhroo never came in possession of any part of the suit land. Achhroo has not died intestate, but he had executed a registered “will” in favour of defendant No.1 on 7.4.1972. Suit land was mutated in favour of defendant No.1. He has been coming in possession of the same. Plaintiffs started interfering with the possession of defendants over the suit land. Defendant No.1 had filed a Civil Suit No. 46/2000. Plaintiffs made a statement on oath that they are neither interfering nor they have intention to interfere with the suit land. 4. Learned Sub Judge 1st Class framed issues on 14.6.2002. He dismissed the suit on 21.6.2003. Plaintiffs preferred an appeal against the judgment and decree dated 21.6.2003 before the Additional District Judge, Fast Track Court, Hamirpur. He allowed the same on 22.11.2007. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law on 29.12.2007: 1. “Whether the findings of the court below are perverse, based on misreading of oral and documentary evidence and pleadings of the parties more particularly the basic document of title Ex.DW-4/A dated 7.4.1972? 2. Whether the alleged suspicious circumstances attached to the execution and registration of the will Ex.DW-4/A were suspicious circumstances at all and in any case stood explained and the assumption drawn by the court below that the execution of the will had not been proved satisfactorily are sustainable in law? 3. Whether in view of the admitted fact that the defendant Bakshi Ram was in possession of the property from the documents D-1 and D-2, a decree for injunction and joint possession is sustainable in law?” 5. Mr. K. D. Sood, learned Senior Advocate, on the basis of the substantial questions of law, has vehemently argued that the learned first appellate court below has misread the oral as well as documentary evidence. According to him, “will” Ex.DW-4/A has been executed in accordance with law. He lastly contended that Bakshi Ram was in possession of the property on the basis of Ex.D-1 and D-2. 6. Mr. Ajay Sharma has supported the judgment and decree passed by the first appellate court. 7. I have heard the learned counsel for the parties and have gone through the record carefully. 8. Achhroo Ram was allotted suit land by the Collector, Hamirpur on 27.6.1976. He died on 8.11.1982. 6. Mr. Ajay Sharma has supported the judgment and decree passed by the first appellate court. 7. I have heard the learned counsel for the parties and have gone through the record carefully. 8. Achhroo Ram was allotted suit land by the Collector, Hamirpur on 27.6.1976. He died on 8.11.1982. Case of the defendants is that Achhroo Ram had executed a “will” Ex.DW-4/A on 7.4.1972 in favour of defendant 9. PW-1 Charan Dass has led his evidence by filing his affidavit. He has supported the averments made in the plaint. In his cross-examination, he has deposed that Achhroo Ram died in the year 1982. Achhroo Ram had not executed any “will” in favour of defendants. The mutation was attested 20 years back. He did not know about the same. They came to know in the year 2000. There was earlier litigation with the defendants titled Bakshi Vs. Des Raj. They have recorded their statement Ex.D-1. Achhroo used to put his thumb impression. Thereafter, he started putting his signatures. He was not aware that Achhroo has executed “will” in favour of Bakshi Ram. 10. Charan Dass has also appeared in rebuttal as PW-2. He has led his evidence by filing affidavit. He has reiterated in his affidavit that Achhroo has not executed any “will” in favour of Bakshi. Achhroo remained seriously sick after 1972. He was not in a position to understand good and bad. In his cross-examination, he has denied the suggestion that mutation was attested in favour of Bakshi Ram on the basis of “will”. Volunteered that there was no “will” executed in his favour. They have not lodged any report against the forged “will”. They came to know about the “will” in the year 1989. He has denied the suggestion that his father was hale and hearty at the time of execution of “will”. 11. PW-3 Arjun Singh has also appeared in rebuttal. He has also led his affidavit by way of affidavit. According to the averments contained in the affidavit, Achhroo remained seriously sick after February, 1972. In his cross-examination, he has deposed that Achhroo died at the age of 85 years. Johgal died in the year 1994. 12. DW-1 Bakshi Ram has deposed that his father died in the month of November, 1983. He had executed registered “will” in his favour on 7.4.1972. Last rites were performed by him. In his cross-examination, he has deposed that Achhroo died at the age of 85 years. Johgal died in the year 1994. 12. DW-1 Bakshi Ram has deposed that his father died in the month of November, 1983. He had executed registered “will” in his favour on 7.4.1972. Last rites were performed by him. He was in possession of the suit land. He has distributed 5-5 Marlas of land each in favour of his four sons. Plaintiffs have no connection with the suit land. In his cross-examination, he has deposed that Johgal and Suhri Devi were also legal representatives of Achhroo. Johgal has died. He has denied the suggestion that Achhroo was seriously sick in the year 1972 and he was not in his senses. He has denied the suggestion that Achhroo was looked after by Johgal and his sons. He used to look after him. Sh. Bhagat Ram was the marginal witness of the “will”. Second witness Numberdar has died. 13. DW-2 Bhagwan Dass has led his evidence by way of affidavit. According to him, he knew the parties. Land was in possession of defendants. Achhroo and his wife were looked after by Bakshi Ram. Johgal died in the year 1995. He used to live separately from his parents. Plaintiffs have no connection with the land. In his cross-examination, he has admitted that he did not know the Khasra number of suit land. He did not know the measurement of the land and number of fields. He did not know who was in possession of the suit land. Then stated that the land purchased by Achhroo was in possession of Bakshi Ram. 14. DW-3 Lekh Raj has also led his evidence by way of affidavit. According to DW-3, he knew the parties. Achhroo Ram died in the year 1983. His last rites were performed by Bakshi Ram. Bakshi Ram used to look after Achhroo Ram and his wife. The suit land was in possession of defendants and plaintiffs had no connection with the suit land. In his cross-examination, he has deposed that the suit land was 4-5 Kanals. He did not know number of fields. He has admitted that Achhroo Ram had two sons, Bakshi Ram and Johgal and one daughter Suhri Devi. He has denied the suggestion that the land was owned jointly by them. Sh. Charan Dass was Rakha of forest. 15. In his cross-examination, he has deposed that the suit land was 4-5 Kanals. He did not know number of fields. He has admitted that Achhroo Ram had two sons, Bakshi Ram and Johgal and one daughter Suhri Devi. He has denied the suggestion that the land was owned jointly by them. Sh. Charan Dass was Rakha of forest. 15. DW-4 Onkar Singh has proved copy of “will” Ex.DW-4/A. It was registered at Sr. No.211 on 7.4.1972. He identified the signatures of his father. In his cross-examination, he has admitted that it has not been mentioned, who has put thumb impression at Sr. No.211. 16. DW-5 Bhagat Ram has also led his evidence by way of affidavit. According to him, Achhroo Ram has got scribed the “will” from Sohan Singh, Document Writer, on 7.4.1972. The “will” was read over to Achhroo, who after admitting the contents of the same to be correct put his thumb impression. Tulsi Ram Numberdar has signed the same in Urdu. He also signed in Urdu. The “will” was produced before the Sub-Registrar, Hamirpur. The “will” was read over to Achhroo Ram by the Registrar. Achhroo Ram admitted the contents of the “will” to be correct. Achhroo Ram was in his senses. In his cross-examination, he has deposed that Tulsi Ram, Numberdar put his signatures in his presence and Achhroo Ram put his Thumb impression. He also admitted that Achhroo Ram was sick at that time. He was not in a position to differentiate between good and bad. 17. What emerges from the discussion of evidence led by the parties is that the land was allotted to Achhroo on 27.6.1976. The “will” Ex.DW-4/A is dated 7.4.1972. 18. It is not in dispute that Bakshi, Johgal and Smt. Suhri Devi were legal heirs of Achhroo. He died on 8.11.1982. Johgal has also died on 15.4.1995. The “will” is dated 7.4.1972. According to the defendants, it was scribed by Sh. Sohan Singh. According to DW-4 Onkar Singh, the will was registered at Sr. No. 211. DW-4 has identified the signatures of his father. In his cross-examination, he has admitted that it has not been mentioned, who has put thumb impression at Sr. No.211. DW-4 has merely produced “will” Ex.PW-4/A. According to DW-5 Bhagat Ram, the “will” was executed by Achhroo Ram on 7.4.1972. It was scribed by Sohan Singh, Document Writer. No. 211. DW-4 has identified the signatures of his father. In his cross-examination, he has admitted that it has not been mentioned, who has put thumb impression at Sr. No.211. DW-4 has merely produced “will” Ex.PW-4/A. According to DW-5 Bhagat Ram, the “will” was executed by Achhroo Ram on 7.4.1972. It was scribed by Sohan Singh, Document Writer. According to him, the contents of the “will” were read over and explained to Achhroo, who after admitting the same to be correct, put his thumb impression. He alongwith Tulsi Ram, Numberdar put his signatures on the “will”. The “will” was produced before the Sub-Registrar, Hamirpur. In his affidavit, he has stated that Achhroo Ram was in his senses at the time of execution of the “will”. In his cross-examination, he has admitted that Achhroo was sick at the relevant time. He has stated that he was seriously ill. He has deposed that Tulsi Ram, Numberdar has signed the “will” and thereafter Achhroo put his thumb impression. The “will” has not been proved in accordance with law. The marginal witness is supposed to see the testator signing the “will” in his presence and thereafter he is supposed to sign the “will”. The defendants have not cited any witness from the office of Sub-Registrar where the “will” is alleged to have been registered. There is no cogent and convincing reasons forthcoming why the other son, namely, Johgal and daughter Smt. Suhri Devi were disinherited by Achhroo except that one of his son is Rakha of forest and has acquired lot of land. 19. The defendants have failed to prove that “will” was executed by Achhroo Ram and he was in a sound disposing state of mind at the time of execution of “will”. The defendants have failed to dispel the suspicious circumstances shrouded the “will” Ex.DW-4/A. Merely that the “will” is registered will not make it valid “will” in the absence of cogent and convincing evidence. 20. Mr. K.D. Sood, learned Senior Advocate has also tried to support his case with the help of statement Ex.D-1 made by the counsel for plaintiffs in earlier suit and order Ex.D-2. Defendant Bakshi had earlier filed a suit. The counsel for the plaintiffs had only given the statement that the plaintiffs neither interfered nor would interfere in the suit land nor raise any construction. Defendant Bakshi had earlier filed a suit. The counsel for the plaintiffs had only given the statement that the plaintiffs neither interfered nor would interfere in the suit land nor raise any construction. In view of this statement, the suit of defendant Bakshi Ram was dismissed as not pressed. The issue of “will” dated 7.4.1972 was not involved in the earlier suit. Plaintiffs have come to know about the “will” in the month of July, 2001 and they immediately applied for the revenue record. 21. The first appellate court has correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgment passed by the first appellate court. 22. Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the appeal and the same is dismissed. Pending application, if any, also stands disposed of. No costs.