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2016 DIGILAW 3917 (ALL)

Sant Ram Pal v. Urmila Pal

2016-12-05

ATTAU RAHMAN MASOODI

body2016
JUDGMENT Attau Rahman Masoodi, J. -- Heard learned counsel for the appellant. 2. A suit for possession on the basis of registered will dated 26.4.1993 was filed by the respondent-plaintiff before the civil court, which was duly contested by the appellant-defendant. On the basis of pleadings set out, the trial court proceeded to frame as many as five issues. The first issue was, as to the legality of will deed executed by late Babu Lal Pal in respect of house no. 281/394 situated at Mawayya Crossing, Ward Yahiyaganj, District Lucknow and the second issue framed was, as to whether the respondent-plaintiff on the basis of said will had become an owner of the property in dispute. The other issues related to the cause of action and the relief which the respondent-plaintiff was entitled to. 3. On a close scrutiny of the evidence led before the trial court, it was found that the will executed by late Babu Lal Pal in favour of respondent-plaintiffs, though being filed in the form of a certified copy was duly proved. The will was also proved on the premise that late Babu Lal Pal at the relevant time was of sound mind and as such execution of will could not be doubted on any such ground. It was recorded in the trial court judgement that since the appellant-defendant had not raised any question as to the authority of late Babu Lal Pal to execute the will, therefore, in the absence of any evidence placed on record to disprove the title of late Babu Lal, there could not be any doubt about the ownership as well. 4. The correctness of the trial court judgement/decree was questioned by the appellant by filing Regular Civil Appeal No. 21/2010, inter alia, on the ground that the trial court while dealing with the issue as to the authority of late Babu Lal, has not recorded a finding in relation to his title to bequeath the property. 5. The ground raised in the first appeal on being considered by the first appellate court led to the framing of points of determination in the form of additional issues and as many as three additional issues were framed by the first appellate court. The core issue related to the authority of late Babu Lal Pal to execute the will in respect of house no. 281/394 situated at Mawayya Crossing, Ward Yahiyaganj, District Lucknow. The core issue related to the authority of late Babu Lal Pal to execute the will in respect of house no. 281/394 situated at Mawayya Crossing, Ward Yahiyaganj, District Lucknow. 6. The second issue was framed, as to whether on the basis of alleged will deed, the respondent-plaintiff became owner of the property in question and the third issue was, as to whether the respondent-plaintiff is entitled to the relief of possession. On the first issue, the first appellate court has recorded a categorical finding to the effect that the respondent-plaintiff having failed to deny and disprove the title of late Babu Lal Pal, has further failed to establish his case of making any contribution in the matter of purchase of the property which according to appellant was purchased in the name of late Babu Lal out of his joint contribution and secondly the appellant-plaintiff also failed to establish his case that late Babu Lal possessed the property on the basis of alleged patta. Burden of proof upon the appellant-defendant to establish his case that the property in dispute was either purchased out of his joint contribution or the same was recorded in the name of late Babu Lal on the basis of a patta was rightly construed and he was bound to prove the plea taken by him before the courts below. 7. In absence of any perversity being pointed out in the impugned judgements and particularly when the findings recorded by the trial court are well based on evidence proved by the respondent, interference in exercise of jurisdiction under Section 100 of CPC. is uncalled for. 8. Learned counsel for the petitioner has not urged any other point on the basis of which a substantial question of law may arise for determination between the parties. 9. It may also be relevant to note that a suit for cancellation of will deed filed by the appellant-respondent which was registered as civil suit no. 153 of 2002 has also been dismissed. 10. For the reasons recorded above, the second appeal being bereft of any merit, is hereby dismissed.