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2015 DIGILAW 509 (MP)

Lakhanlal v. Ramji Br.

2015-04-28

ALOK ARADHE

body2015
JUDGMENT : Alok Aradhe, J. 1. Head on the question of admission. 2. This appeal has been filed by the defendant No. 1 who has lost in both the Courts. 3. Facts giving rise to filing of the appeal, briefly stated, are that the respondent-plaintiff filed the suit, inter alia, on the ground that suit land is the ancestral property of plaintiff and defendant No. 1 in which the plaintiff's father has half share. It was further pleaded that after the death of their father, the plaintiff and defendant No. 1 are in joint possession of the land. It was also pleaded that defendant No. 1 is the elder brother of plaintiff and 'Karta' of the family. On 10.8.2004 the defendant No. 1 threatened the plaintiff with dispossession on the ground that he is the owner of the suit lands on the basis of a Will dated 01.11.2001 (Exhibit-P-32). On the strength of the Will, the defendant No. 1, behind the back of the plaintiff, got his name mutated in the revenue records vide order dated 28.2.2004. Accordingly, the plaintiff filed the suit seeking the relief of declaration that he has half share in the suit land. The plaintiff also sought the relief of declaration that Will dated 01.11.2001 executed in favour of defendant No. 1 as forged and order dated 28.2.2004 passed by the Naib Tahsildar is null and void. The plaintiff also sought the relief of permanent injunction restraining the defendants from interfering with the possession of the plaintiff over the suit land. 4. The defendant No. 1 filed the written statement in which claim of the plaintiff was denied. It was further denied that the plaintiff is the owner of the suit land on the basis of Will dated 01.11.2001 (Exhibit-P-32) executed in favour of the defendant No. 1. It was further pleaded that the name of defendant No. 1 has duly been mutated in the revenue records and that he is the owner of the land in question. 5. The trial Court decreed the suit. The aforesaid decree has been affirmed in appeal by the lower appellate Court. 6. Learned counsel for the appellant submitted that the courts below ought to have appreciated that the burden that the Will is forged and fabricated was on the plaintiff and the plaintiff was required to establish the same. 5. The trial Court decreed the suit. The aforesaid decree has been affirmed in appeal by the lower appellate Court. 6. Learned counsel for the appellant submitted that the courts below ought to have appreciated that the burden that the Will is forged and fabricated was on the plaintiff and the plaintiff was required to establish the same. It was further submitted that plaintiff was under an obligation to prove his case. The aforesaid aspect of the matter has not been appreciated by the courts below. 7. I have considered the submissions made by learned counsel for the appellant and have perused the record. Admittedly, the suit land is the ancestral land belonging to father of the plaintiff and defendant No. 1. Both the courts below on the basis of meticulous appreciation of evidence on record have held that the plaintiff has half share in the suit land. The Will (Exhibiti-P-32) dated 01.11.2001 which was executed in favour of defendant No. 1 has been discarded by the courts below on the ground that attesting witnesses to the Will have neither been produced nor original Will has been filed. The aforesiad concurrent finding of fact has been recorded by the courts below on meticulous appreciation of evidence on record, which by no stretch of imagination, can be said to be either perverse or based on no evidence. Learned counsel for the appellant was unable to dislodge the concurrent finding recorded by the courts below. 8. The jurisdiction of this Court to interfere with the findings of fact under Section 100 of CPC is limited to the case where the finding is either perverse or based on no evidence. This Court cannot interfere with the concurrent finding of fact until or unless the same is perverse or contrary to material on record. [See: Narayanan Rajendran and another v. Lekshmy Sarojini and Others, (2009) 5 SCC 264 , Hafazat Hussain v. Abdul Majeed and Others, (2011) 7 SCC 189 and D.R. Rathna Murthy vs. Ramappa, (2011) 1 SCC 158 and Vishwanath Agrawal vs. Sarla Vishwanath Agrawal, (2012) 7 SCC 288 , Union of India v. Ibrahim Uddin and Another, (2012) 8 SCC 148 , Vanchala Bai Raghunath Ithape(dead) by LR v. Shankar Rao Babu Rao Bhilare (dead) by LRS. And others, (2013) 7 SCC 173 ]. 9. For the aforementioned reasons, no substantial question of law arises for consideration in this appeal. And others, (2013) 7 SCC 173 ]. 9. For the aforementioned reasons, no substantial question of law arises for consideration in this appeal. The same fails and is hereby dismissed.