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2015 DIGILAW 54 (RAJ)

Sudesh v. Amar Pal Singh

2015-01-08

NISHA GUPTA

body2015
JUDGMENT 1. - This first appeal under Section 96 CPC has been filed against the judgment and decree dated 15.4.2005 passed by Additional District Judge (Fast Track), Behror, Alwar in Civil Suit No. 103/04 (17/02) whereby the suit filed by the appellants has been dismissed. 2. The brief facts of the case giving rise to this appeal are that plaintiff appellants filed a suit for cancellation of Will dated 12.6.2001 on the ground that Will dated 12.6.2001 has been forged in favour of respondents whereas earlier father of the parties Lallu Singh has executed a Will dated 7.6.2001 and property has been divided in all the three children's. The earlier Will was attested by notary public and witnessed by two witnesses. On 14.6.2001, Lallu Singh died. Thereafter wife of respondent No.1 got her name entered in the mutation which was objected by the appellants and suit has been filed which was dismissed, hence this appeal. 3. The contention of the counsel for the appellants is that the property in dispute was the ancestral property in the hands of Lallu Singh hence he was not able to alienate it by Will and Will dated 12.6.2001 is without competence and during the course of appeal, application under Order 41, Rule 27 CPC has been submitted with the contention that the suit property was in the name of their grand-father Mangtu Singh and it is the ancestral property. Earlier the documents were not within the knowledge of the appellants and notwithstanding the exercise of due diligence they could not be produced before the trial Court and issue No.1 has been decided against them only on this ground that no documentary evidence has been submitted to prove that the disputed property is ancestral property, hence application under Order 41, Rule 27 CPC be allowed and decree of the court below be set aside.Per contra, the contention of the respondents is that there is no infirmity in the finding and conclusion of the court below. It does not lie in the mouth of the appellants to say that the disputed property is the ancestral property in the hands of Lallu Singh as the basis of the suit for cancellation of Will dated 12.6.2001 is the earlier Will dated 7.6.2001 executed in favour of appellants and non production of documents before the trial Court was with the mala fide intention as the Will dated 7.6.2001 was in favour of appellants the documents have not been submitted and when the suit has been dismissed then only false documents have been submitted. 4. Heard the learned counsel for the parties and perused the judgment and decree under appeal as well as original record of the case. 5. The contention of the appellants in the pleading was that the disputed property is ancestral property in the hands of Lallu Singh but PW/1 Sudesh appellant herself has specifically stated that it was the self-acquired property of Lallu Singh and not the ancestral property. Furthermore, the basis of the suit was Ex.1 Will dated 7.6.2001 which was in favour of appellant. Apart from it, Ex.2 sale deed has also been relied upon by which certain properties have been sold to third-person, hence the contention mainly before the learned trial Court was Will dated 12.6.2001 is forged one as it does not contain the reference of earlier Will dated 7.6.2001 and the specific admission of the appellants in evidence was that it is not the ancestral property in the hands of Lallu Singh and in spite of specific objection, no revenue record of the disputed property has been submitted before the court below and reason is also obvious as pointed out by the counsel for the respondents that documentary evidence have not been submitted as the Will dated 7.6.2001 was in favour of plaintiff appellants. 6. 6. Now application under Order 41, Rule 27 CPC has been submitted for taking the revenue record of the disputed property with the contention that revenue record was not within the knowledge of the appellants which prima facie seems to be false as the contention before the court below was that when mutation of the property has been entered in the name of defendants, then they came to know about the Will dated 12.6.2001 and against the mutation entries, appeal has also been filed in the Court of Additional District Magistrate, Behror, hence revenue record was within the knowledge of the appellants from their inception but specific plea has been taken by them in the statement of PW/1 Sudesh that property is not ancestral property in the hands of Lallu Singh and Ex.1 Will dated 7.6.2001 narration has been stated that property is self-acquired property of Lallu Singh which has been made the basis of the suit and Ex.2 has also been relied by the appellants in which also property has been sold treating it to be the self-acquired property of Lallu Singh, hence the appellants cannot blow hot and cold together. They cannot resile from their earlier admissions which are on record by way of documents Ex.1 and 2 and also in the shape of statement of PW/1, Sudesh. 7. The appellants have relied upon Shyam Gopal Bindal & ors. v. Land Acquisition Officer & Anr., (2010) 2 SCC 316 wherein application under Order 41, Rule 27 CPC has been allowed as the sufficient cause for non production was shown and evidence produced was of importance for the just decision of the matter but here in the present case, as pointed out earlier, the facts are quite peculiar, purposely documents have not been submitted earlier which were in the knowledge and could be obtained by the appellants. Further reliance has been placed on Jayaramdas & Sons v. Mirza Rafatullah Baig & ors., (2004) 10 SCC 507 where certified copies have been produced. Here the case is the same that certified copy of the revenue record has been produced, genuineness of the same could not be disputed but looking to the fact that purposefully documents have been withheld which was in the knowledge of the appellants, hence the case does not fall under the provisions of Order 41, Rule 27 sub-clause (AA) CPC. Here the case is the same that certified copy of the revenue record has been produced, genuineness of the same could not be disputed but looking to the fact that purposefully documents have been withheld which was in the knowledge of the appellants, hence the case does not fall under the provisions of Order 41, Rule 27 sub-clause (AA) CPC. Reliance has also been placed on Jaipur Development Authority v. Kailashwati Devi (Smt.) (1997) 7 SCC 297 where the point in issue was different as the appellant has not adduced any evidence before the trial Court which is not the case here. Further reliance has been placed on All Gramwasi of Fatehnagar Nagarpalika v. Nagarpalika Fatehnagar, RLR 1999 (1) 17 where the documents were not within the knowledge of the party after exercise of due diligence hence allowed. Here the documents were not in the knowledge of the party as objections as regards the mutation has been raised and apart from it as pointed out earlier, the non production of documents is purposeful and mala fide. 8. In view of the above, application (19427 dated 29.7.2008) under Order 41, Rule 27 CPC is liable to be dismissed and accordingly the same is dismissed. 9. The court below has considered the rival contentions and rightly held that it has not been proved that the property was ancestral property in the hands of Lallu Singh rather the documents produced by the appellants themselves Ex. 1 and 2 speaks otherwise and PW/1 Sudesh has also stated that it was not the ancestral property in the hands of Lallu Singh and after considering the rival contentions, the suit has been dismissed. No infirmity has been pointed out in the findings and reasoning of the court below, hence this appeal also deserves to be dismissed.The appeal is accordingly dismissed.Appeal dismissed. *******