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2016 DIGILAW 4062 (ALL)

Krishna Behari v. Urmila Devi

2016-12-16

RAGHVENDRA KUMAR

body2016
JUDGMENT Raghvendra Kumar,J. Heard learned counsel for the appellant and learned counsel for the respondents. 2. Initially the plaintiff-appellant, Kishna Behari instituted Original Suit No. 1602 of 1999 against Smt. Chandrawati and others for the relief of permanent injunction. The suit was dismissed vide order dated 27.4.2011 passed by the Addl. Civil Judge ( Jr. Division), Court No. 15, Allahabad. Being aggrieved by the aforesaid order, the plaintiff-appellant preferred First Appeal No. 1136 of 2011 against Smt. Urmila Devi and others which too has been dismissed by the Addl. District Judge, Court 19, Allahabad vide order dated 29.7.2016 and the judgment and order passed by the learned trial court was affirmed. Being aggrieved by the judgment and order passed by the courts below, the instant appeal is before this Court. 3. Learned counsel for the appellant submits that the plaintiff-appellant is the owner of Araji Nos. 136 and 260 and is recorded in the revenue record as Bhumidhar. It is submitted that so long entry continues, it is to be treated to be valid and there shall be presumption under section 57 of the U.P. Land Revenue Act about the correctness of the entry. The plaintiff-appellant claims to be the owner by virtue of the will deed 12.11.1994 executed by Triveni Prasad who was recorded tenure holder of the property in dispute. Triveni Prasad, at the time of death, left behind his wife. The couple was issuless. The plaintiff appellant initiated proceeding before the appropriate authority under section 34 of the U.P. Land Revenue Act and pursuant to the order passed therein dated 23.4.1999, the name of the plaintiff-appellant was recorded as owner in place of Triveni Prasad. Smt. Chandrawati filed a restoration and plaintiff's name was deleted/stayed. Smt. Chandrawati executed a registered will in favour of the plaintiff-appellant on 7.8.2003 and she subsequently died. The mutation proceeding are pending. 4. Learned counsel for the appellant has placed reliance upon para 2 and 3 of the evidence filed alongwith the stay application in this appeal at page 108 of the paper book. 5. Per contra, learned counsel for the respondents submitted that the learned courts below have recorded the finding that the plaintiff-appellant has failed to establish his title and possession over the property in dispute. The Appeal nos. 51 and 54 of 2010 are pending before the appropriate forum against the mutation order passed in favour of the plaintiff-appellant. 5. Per contra, learned counsel for the respondents submitted that the learned courts below have recorded the finding that the plaintiff-appellant has failed to establish his title and possession over the property in dispute. The Appeal nos. 51 and 54 of 2010 are pending before the appropriate forum against the mutation order passed in favour of the plaintiff-appellant. 6. Learned trial court has considered in detail the admitted position that Triveni Prasad left behind his wife as sole heir. Learned court below has considered this aspect bearing in mind various proposition of law laid down from time to time that in the presence of wife, Triveni Prasad executed will in favour of the plaintiff-appellant. Learned trial court has made an observation that the document of title of will has not been produced by the plaintiff-appellant before the trial court and the will dated 12.1.1994 is an unregistered document. The plaintiff-appellant did not put forward a reasonable explanation before the trial court for not producing the will. Triveni Prasad did not give any share of the movable or immovable property to his wife and ignoring her he has executed will deed. Learned court below has also considered the aspect of entry made in the revenue records in reference to the Supreme Court pronouncement referred in the body of the judgment. Learned court below have also made observation on the document wherein the operation of the entry made in favour of the plaintiff-appellant has been stayed. The court below has also considered the pleadings of the defendants with respect to the execution of sale deed by the defendant no.3, in favour of defendant no. 1 with respect to 2/3 share of Araji No. 260. the judgment of the trial court also finds mention on the basis of the admission made by P.W.1 with respect to the pendency of the suit for cancellation of the sale deed alleged to have executed in favour of the defendant no. 1 of Original Suit by defendant no. 3 of the O.S. Learned court below has also made observation that on the basis of proposition laid down by Hon'ble Supreme Court mentioned in the body of the judgment that so long the sale deed is not declared void or cancelled. It shall remain effective, being a registered document. No fact about cancellation of the sale deed was brought before the trial court. It shall remain effective, being a registered document. No fact about cancellation of the sale deed was brought before the trial court. Learned court below on the basis of sale deed recorded the observation that the defendant no. 3, being owner of 2/3 portion of the property of Araji no. 260 becomes co-owner and presumption of law is ample clear that all the co-owners are owner of every inch of the property and are in possession of every inch. The pedigree disclosed by the plaintiff has not been supported by P.W.2. The trial court after considering the pleadings and evidence on record, recorded the finding that the plaintiff has failed to establish his lawful possession over the property in dispute in his lawful right and accordingly dismissed the suit. The pleadings and evidence of the trial court was scrutinised by the first appellate court and the first appellate court reiterated the finding of learned trial court on all material aspect of the litigation. 7. The plaintiff-appellant has admittedly obtained a registered will by Chandrawati, wife of the deceased Triveni Prasad in his favour on 7.8.2003. Chandrawati died on 20.8.2003. What was the occasion for the plaintiff-appellant to obtain subsequent will deed from Chandrwawati who was according to him was not owner of the property in question. Moreso, when the plaintiff-appellant has claimed his title on the will alleged to have been executed by Triveni Prasad dated 12.11.1994 and plaintiff-appellant has not rendered any plausible explanation for the same. The plaintiff has not explained the circumstances why he did not prefer to file the copy of the will before the court below and why he did not prove its execution by producing the attested witnesses or the inscribe of the document. The plaintiff-appellant has also not led any evidence to the effect that what were the reasons why the husband of Chandrawati, Triveni Prasad did not give any right to her after his death and also not explained the circumstances under which and on what consideration, the will was executed by Triveni Prasad in his favour (plaintiff-appellant). 8. The finding recorded by the courts below are well substantiated from the evidence available on record. 8. The finding recorded by the courts below are well substantiated from the evidence available on record. The findings recorded by learned courts below are neither perverse nor have been recorded in the absence of evidence nor the learned courts below have committed any mistake of misreading of evidence in recording the finding against the plaintiff-appellant. There appears no justification to interfere with the concurrent findings recorded by the learned courts below. 9. The appeal is bereft of merit and it is accordingly dismissed.