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2016 DIGILAW 1882 (ALL)

Ram Kishor v. Chhunni Singh

2016-05-13

PRAMOD KUMAR SRIVASTAVA

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JUDGMENT : PRAMOD KUMAR SRIVASTAVA, J. 1. Heard counsel for the appellant and perused the record. 2. The pedigree of parties is admitted facts. Ratan Singh, Kamod Singh and Smt. Shyama are the real brothers and sister. Shanti Devi (defendant no. 2) is wife of Ratan Singh. Plaintiff Ram Kishor is son of Kamod Singh and defendant no. 1 Chunni Singh is son of Smt. Shyama w/o Mehraban Singh. It is also admitted that registered sale deed dated 15.9.2003 was executed by Shanti Devi after death of her husband in favour of defendant no. 1 Chunni Singh, then plaintiff Ram Kishor has filed O.S No. 225 of 2003 pleaded that Ratan Singh was original owner of disputed agricultural property, and he had executed will deed dated 24.2.1998 in favour of plaintiff. Therefore after death of Ratan Singh, plaintiff became owner of disputed property and Shanti Devi widow of Ratan Singh had no right to execute sale deed in question in favour of defendant no. 1. On these facts he has filed suit for cancellation of sale deed and for permanent injunction relating to the disputed property. 3. In written statement, defendant no. 1 pleaded himself to be the owner of disputed agricultural property on the basis of allegedly valid registered sale deed dated 15.9.2003 executed by defendant no. 2 Shanti Devi for proper consideration. 4. After affording opportunity of hearing to parties, Addl. Civil Judge (JD), Court No. 2, Rama Bai nagar, Kanpur Dehat dismissed the original suit by its judgment dated 24.10.2011 with finding that plaintiff had failed to prove ground mentioned in plaint for cancellation of sale deed and he had not proved the alleged will deed said to have been executed by Ratan Singh in his favour. 5. Against the judgment of the trial court, Civil Appeal No. 154 of 2011 Ram Kishor v. Chunni Singh was preferred by plaintiff of the original suit which was heard and dismissed by the judgment dated 23.8.2013 of Additional District Judge, Court No. 6, Rama Bai Nagar, Kanpur Dehat. In this judgment first appellate court had held that sale deed executed by Shanti Devi defendant no. 2 in favour of defendant no. 1 is proved from evidence and it is not proved that any will deed was ever executed by Ratan Singh in favour of plaintiff. With these findings first appellate court had confirmed the judgment of trial court. 6. 2 in favour of defendant no. 1 is proved from evidence and it is not proved that any will deed was ever executed by Ratan Singh in favour of plaintiff. With these findings first appellate court had confirmed the judgment of trial court. 6. Against the judgment of the trial court as well as first appellate court, the present second appeal has been preferred by plaintiff of the original suit. 7. Counsel for the appellant admitted that in absence of any marginal witness of the will deed, plaintiff appellant had failed to prove execution of alleged will deed dated 24.2.1998 said to have been executed by him. He submitted that it was fault of counsel for plaintiff-appellant for which appellant should not suffer and matter should be remanded before trial court for fresh opportunity of adducing evidence to the parties. 8. Perusal of record reveals that trial court and first appellate court had already afforded appropriate opportunity of hearing to the parties and they have utilzed said opportunities. Plaintiff had examined three witnesses one of which was himself, but other two were not marginal witnesses of the alleged will deed. Plaintiff had knowledge from the time of institution of that for the relief sought plaint he has to prove the will deed alleged by him, but apparently he had not adduced marginal witnesses or any person who could prove the execution of alleged will deed said to have been executed by Ratan Singh in his favour. Thus apparently he had deliberately suppressed best evidence available in his favour for the opportunity of hearing was given to him by trial court. Then before first appellate court neither such plea was taken in memo of first appeal under Order 41 Rule 2 CPC nor any argument was placed. Both the lower courts had rightly held that in absence of any evidence or proof of execution of will deed, the said cannot be accepted as proved. The only basis of said was alleged will deed which was deliberately not proved by plaintiff-appellant and for which proper opportunity had been afforded to him. In these circumstances, he cannot be permitted to raise this point of alleged remand of the matter directly in second appeal without raising such plea before first appellate court. 9. The only basis of said was alleged will deed which was deliberately not proved by plaintiff-appellant and for which proper opportunity had been afforded to him. In these circumstances, he cannot be permitted to raise this point of alleged remand of the matter directly in second appeal without raising such plea before first appellate court. 9. Only point to be decided in this matter relating to execution on alleged will deed by Ratan Singh was a question of fact and not question of law. Such question could be decided on the basis of evidence only as has been done by the lower courts. There appears no illegality, infirmity or perversity in finding of the trial court or first appellate court, who had given concurrent finding that plaintiff had failed to prove this case. 10. On examination of the reasonings recorded by the trial court, which are affirmed by the first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate Court are well reasoned and are based upon proper appreciation of the entire evidence on record. No question of law, much less a substantial question of law, was involved in this case before the High Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellant-plaintiffs can be sustained. 11. In view of the above, this Court finds that no substantial question of law arises in this appeal. The second appeal is dismissed.