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2017 DIGILAW 467 (ALL)

Ram Vilas v. Rajendra Pal Singh

2017-02-08

RITU RAJ AWASTHI

body2017
JUDGMENT Ritu Raj Awasthi, J. Heard learned counsel for appellant and perused the record. 2. This second appeal under Section 100 Code of Civil Procedure has been filed against the judgment and order dated 02.11.2016 passed in Civil Appeal No. 53 of 2014 (Ram Vilas Vs. Rajendra Pal Singh and another) as well as judgment and decree dated 15.7.2013 passed in Regular Suit No. 115 of 2009 (Ram Vilas Vs. Rajendra Pal Singh and another) whereby the suit for cancellation of will-deed dated 16.9.1994 has been dismissed and the first appeal preferred by the appellant has also been dismissed. 3. As per given facts of the case, the appellant being the cousin of late Bitana, who had died issueless, was the person having right of inheritance over the land in question and the respondents had fraudulently got a forged unregistered will-deed dated 16.9.1994 prepared and on the basis of said will-deed had got the land in question transferred in their names in the consolidation proceedings and had got the revenue records amended accordingly. 4. Learned counsel for appellant submits that in the suit filed by the appellant notices were duly served on the respondents, however, they did not appear and the suit was proceeded ex-parte. The evidence in the form of statements of PW-1 (appellant himself), PW-2, PW-3 and PW-4 were led before the learned Trial Court which clearly supported the case of the appellant, however, the learned Trial Court has dismissed the suit. The first appellate Court without properly considering the pleadings made in the appeal has upheld the judgment and decree of the Trial Court and has dismissed the first appeal. 5. It is submitted by learned counsel for appellant that the first appellate Court has committed manifest illegality in holding that the appellant being the cousin of late Bitana had no right of inheritance as per U.P. Zamindari Abolition and Land Reforms Act. It is submitted that in the statement of witnesses produced by him it has been stated that the appellant is the son of brother of the father of late Bitana and, as such, has acquired interest into the land in question. The respondents being totally outsider have no concern with the land in question. By way of fraud, the land has been transferred in their names due to the connivance of one Indra Bhadur Singh. 6. The respondents being totally outsider have no concern with the land in question. By way of fraud, the land has been transferred in their names due to the connivance of one Indra Bhadur Singh. 6. Submission is that the learned Trial Court was required to consider the evidence which was placed on record while deciding the suit. Learned counsel for appellant also submits that the first appellate Court has also failed to consider this aspect of the matter. 7. I have considered the submissions made by learned counsel for appellant and gone through the record. 8. Copy of the plaint which was registered as Regular Suit No. 115 of 2009 is on record. The perusal of the plaint does not disclose as to how and in what manner any cause of action has accrued to the appellant-plaintiff. In paragraph 9 of the plaint, it is only mentioned that the cause of action had accrued in the last week of month of January, 2009 when the respondents-defendants had tried to take forceful possession over the land in question. The plaintiff was under impression that unless any final order is passed, the possession over the land in question would be of plaintiff, therefore, he had not taken any copy of Intekhab, etc. in this regard. 9. The reading of the plaint does not disclose as to how the plaintiff was concerned with the land in question which was admittedly belonging to late Bitana. It does not disclose as to when the alleged fraud was committed and when respondents had got a forged will-deed prepared in their favour. It also does not disclose that the appellant-plaintiff had taken any legal recourse by lodging any criminal case against the respondents for committing such forgery on late Bitana. 10. The learned Trial Court has come to conclusion that it was the duty of the plaintiff to have established beyond doubt that any such fraud in the execution of alleged will-deed has been committed by the respondents-defendants. The plaintiff has failed to produce any cogent evidence to establish beyond doubt that any such fraud was committed. The learned Trial Court has come to conclusion that in the plaint the appellant-plaintiff has not disclosed the cause of action accrued to him and, as such, the suit is liable to be dismissed. 11. The plaintiff has failed to produce any cogent evidence to establish beyond doubt that any such fraud was committed. The learned Trial Court has come to conclusion that in the plaint the appellant-plaintiff has not disclosed the cause of action accrued to him and, as such, the suit is liable to be dismissed. 11. The first appellant Court while deciding the first appeal filed by the appellant-plaintiff has recorded in its finding that in the plaint or in the statement of witnesses it has not been disclosed as to when, where and how the said fraud has been committed by the respondents, as such, the evidence on record clearly lacks in evidence to prove the alleged fraud. The learned first appellate Court has agreed with the finding of the learned Trial Court that since the appellant-plaintiff has not disclosed as to how and when the cause of action has accrued to him the plaint was rightly dismissed by the learned Trial Court. 12. Learned counsel for appellant has not been able to show any case law on the point that for the purpose of seeing the cause of action the Court is required to go through the evidence to find out as to what cause of action has accrued to the appellant-plaintiff. In fact, it is well settled that for the purpose of maintaining a suit the plaintiff is required to be very specific in giving the cause of action which is said to have accrued to the plaintiff. 13. From bare perusal of the plaint, it is well established that the appellant-plaintiff has not disclosed the basic requirement of cause of action which was accrued to him, as such, I do not find any infirmity or illegality in the findings recorded by the learned Courts below. There are concurrent findings of two courts below which are based on cogent reasons and considering the averments made in the plaint filed by the appellant-plaintiff and evidence on record. 14. No substantial question of law is involved in the instant second appeal. The second appeal being devoid of merit is dismissed at the admission stage.