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2015 DIGILAW 1001 (MP)

Nandlal v. Bhura (Dead) Through LR

2015-09-21

R.S.JHA

body2015
JUDGMENT 1. Heard on the question of admission. 2. The appellants/defendants have filed this appeal being aggrieved by the judgment and decree dated 23.8.2005 passed by District Judge, Betul, in Civil Appeal No.15-A/2005 by which the suit filed by the respondent/plaintiffs, for declaration, injunction and possession in respect of the disputed property has been decreed by the first appellate Court. 3. The brief facts leading to filing of the present appeal are that the respondents/plaintiffs filed a suit for declaration, injunction and possession in respect of 2.46 acres of land, situated in Survey No.70/2, in village Rampur, Tahsil Shahpur, District Betul. It was stated by the respondents that the property in question was the property of Ramratan and after his death the respondents/plaintiffs were the sole owners of the property. 4. The appellants/defendants contested the suit and also filed a counter claim on the basis of the Will dated 27.1.1997 and also sought permanent injunction on the ground that they were in possession of the property in dispute. The trial Court by the judgment and decree dated 11.3.2005 dismissed the suit as well as the counter claim filed by the appellants/defendants. The respondent/plaintiffs being aggrieved by the aforesaid judgment and decree filed an appeal before the first appellate Court and the first appellate Court by the impugned judgment and decree allowed the suit filed by the respondents on recording a finding to the effect that once the Will in favour of the appellants had been found untrustworthy and not proved, therefore, they had no right to retain the property and on that ground has decreed the suit filed by the respondents for declaration, injunction and possession. 5. The learned counsel appearing for the appellants submits that the finding recorded by the first appellate Court is perverse and contrary to the evidence on record. It is stated that the finding in respect of validity of the Will recorded by the Court below is contrary to the oral and documentary evidence on record as there was no evidence to indicate that there were suspicious circumstances surrounding the execution of the Will. 6. Having heard the learned counsel appearing for the parties and after perusing the record, it is observed that the counter claim filed by the appellants claiming rights on the basis of the Will has been dismissed by the trial Court. 6. Having heard the learned counsel appearing for the parties and after perusing the record, it is observed that the counter claim filed by the appellants claiming rights on the basis of the Will has been dismissed by the trial Court. Admittedly, no appeal against the judgment and decree of the trial Court had been filed by the appellants and therefore the finding regarding the Will recorded by the trial Court against the appellants was not challenged by the appellants and accordingly it attained finality. Once the said finding was not assailed by the appellants before the first appellate Court and that has become final, the judgment and decree of the first appellate Court by treating that finding to be final and on that basis decreeing the suit filed by the respondent/plaintiffs cannot be found fault with, more so, as there is a concurrent finding of fact recorded by both the Courts below in respect of the fact that the Will was not validly executed and that there were suspicious circumstances surrounding its execution. Once the claim of the appellants based on the Will stands rejected, the first appellate Court has rightly decreed the suit filed by the respondent/plaintiffs. 7. In view of the aforesaid concurrent finding of fact which has not been challenged by the appellants/defendants before the first appellate Court, I do not find any substantial question of law arising in the present appeal, therefore, the appeal filed by the appellants/defendants being meritless is accordingly dismissed.