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2017 DIGILAW 1558 (RAJ)

Premwati @ Prem Kumari v. Malti Devi

2017-07-13

AJAY RASTOGI, ASHOK KUMAR GAUR

body2017
JUDGMENT : 1. This intra-court appeal is directed against order of the learned Single Judge dated 18.10.2016. 2. The brief facts which are relevant for the purpose are that late Ram Singh, who was father-in-law of the present appellant-Smt. Premwati @ Prem Kumari w/o Late Shivlal (elder son of Ram Singh) executed the alleged Will on 02.02.1982 in favour of late (Shivlal. The appellant's husband, Late Shivlal, filed a suit seeking declaration with regard to the subject land in question bearing Khasra No.14 measuring 2.7, Khasra No.15 measuring 1.9, Khasra No. 16/1.8, Khasra No. 613/0.12, Khasra No. 615/1.6, Khasra No. 616/0.1, Khasra No.619/0.12, Khasra No. 646/2.4, Khasra No. 805/0.7 measuring 11 bigha 6 biswa situated in Village Gudawali, Tehsil Nadbai, District Bharatpur, as indicated in the alleged Will, in the court of SDO No.1 Bharatpur alleging that the father of Shivlal viz. Ram Singh had executed a Will in his favour and all legal formalities for its execution have been complied with, a declaration be made in his favour and he may be recorded as a Khatedar of the aforesaid subject land in question. 3. It may be noticed at this stage that late Ram Singh, who is the testator of the Will, had two sons, one daughter and his wife. Before this Court, the appellant/plaintiff in the present proceedings is the wife of late Shivlal (eldest son of the testator of the Will-Ram Singh) and the impleaded respondent-defendants are Smt. Malti Devi a widow of testator Ram Singh, the younger son of the testator Ram Singh and since his daughter died during pending of the proceedings, her legal representatives have been impleaded as the respondents. A litigation is going on since 1982 within the family members regarding execution of the alleged Will between the beneficiaries qua rest of the members of the family. On the pleadings of the parties, the learned court of SDO, Bharatpur framed as many as 7 issues and since in the written statement filed by the respondents/defendants in the suit, one of the issue framed was that the alleged Will on the basis of which, the plaintiff has approached the Revenue Court for declaration, was the forged Will and no such Will was ever executed by late father of defendants. 4. The matter was examined by the Court of SDO No. 1, Bharatpur. It reveals that issue no. 4. The matter was examined by the Court of SDO No. 1, Bharatpur. It reveals that issue no. 5, the basic issue and root cause that the Will was forged and never executed by its testator remain unnoticed and no finding on issue no. 5 was indisputably recorded. Although while recording a finding with regard to issue No.2 observations has been made by the Court of SDO and the matter travelled to the Revenue Appellate Authority and Board of Revenue but issue no.5 remain unanswered. The court was indeed under obligation to record its finding on issue no.5 on the basis of pleadings of the parties. The learned Single Judge of this Court observed that issue No.5 certainly goes into root of the matter and in the absence of any finding being recorded, a very suit for declaration based on the alleged Will, which is the foundation deserves to be examined by the courts below and accordingly after the matter being heard, the learned Single Judge in its order impugned remitted the matter back to the competent court of jurisdiction to decide the issue no.5 after affording opportunity of hearing to the parties and take further action in accordance with law. 5. We make it clear that the matter has been remitted only to consider the rival claims of the parties in reference to issue No.5. Since all of the issues has been discussed in detail and a finding has been recorded and that has not been disturbed by the learned Single Judge under the order impugned. 6. Mr. L.L. Gupta counsel for the appellants submits that finding in regard to the forged Will as alleged has been recorded while examining issue No.2 and nothing was stated by the respondents-defendants in their evidence, and adverse inference can certainly be drawn since the burden was on the respondent/defendant who alleged that the Will was forged on the basis of which suit for declaration was filed and unless the burden being discharged certainly onus could not be shifted on him and that being so remitting the matter back to the competent authority to examine issue No.5 in the given facts of the case remains a formality and what have been observed by the learned Single Judge is not supported by any tangible evidence on record and requires interference by this Court. 7. 7. The submission made by the counsel for appellant has no substance at this stage for the reasons that issue No.5 is not dependent on issue No.2 and once the averment has been made in the written statement filed by the respondents-defendants before the Revenue Court and issue no.5 has been framed to this effect, it was obligatory on the part of the authority to look into the material and record its finding independently with regard to issue No. 5. 8. We are not going into the question whether there was sufficiency of material available on record but after the issue No.5 being framed it was imperative for the authority to record its finding independently for which the matter has been remitted by the learned Single Judge under its order impugned. 9. After having heard the learned counsel for the parties, we find no error being committed by the learned Single Judge in passing the order impugned which calls for our interference. 10. Consequently, the present appeal is wholly without substance and accordingly stands dismissed. However, it is made clear that what has been observed by us is only for the purpose of disposal of the present intra-court appeal and the observations made may not influence/inhibit the right of the parties and it would be open for the court below to independently examine the material on record and taking note of the submissions made by the parties, may decide the issue no.5 in accordance with law. Let the parties may record their attendance/presence before the SDO No.1 Bharatpr on 28.07.2017 and there is no need to issue further notices to the respective parties. 11. Copy of the order may be sent to SDO No. 1, Bharatpur for compliance.