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2018 DIGILAW 78 (HP)

Sohan Singh v. Thisu (deleted) & Smt. Kamla

2018-01-05

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The plaintiffs' suit, constituted before the learned trial Court, was, decreed by the learned trial Judge. The learned Trial Judge pronounced findings adverse vis-a-vis defendant, one, Sohan Singh, vis-a-vis the testamentary disposition of deceased testator Ranu, testamentary disposition whereof is borne in Ex.DW5/A, qua it being not proven to be validly and duly executed also the learned trial Court recorded a firm conclusion qua coplaintiff Kamla Devi being born from the loins of deceased Ranu, from the latter's marriage with one Kanchu. The defendant being aggrieved therefrom instituted an appeal before the learned First Appellate Court. The latter Court affirmed the disaffirmative findings recorded by the learned trial Judge, upon, the issue, appertaining to the valid and due execution of the testamentary disposition executed by deceased testator Ranu, testamentary disposition whereof, is, comprised in Ex.PW5/B, whereas, it reversed findings recorded by the learned trial Court qua co-plaintiff being born, from, the loins of lions of deceased Ranu, from his marriage with one Kanchu. The learned First Appellate Court in the operative part of the judgment concluded that co-plaintiff Tishu being the brother of deceased Ranu, hence, his being to the exclusion of defendant Sohan Singh, thereupon, entitled to, on opening of succession vis-a-vis the deceased's estate, hence succeed it. Being aggrieved therefrom, the defendant/appellant herein, has instituted the instant appeal before this Court, for his concerting to beget its reversal. 2. Briefly stated the facts of the case are that the plaintiffs have filed the suit for declaration and permanent injunction with the averments that plaintiff No.1 is brother and plaintiff No.2 is daughter of Sh. Ranu Ram. Plaintiff No.1 along with said Sh. Ranu is recorded owners in possession of the land comprised in Khata No.28, Khatauni No.39, Khasra Nos. 639 and 649, measuring 8-13 bighas situate in Mouza Tiari, Tehsil, Chopal, District Shimla. Sh. Ranu Ram has died 27 years back and plaintiff No.2 was minor at that time. Ranu Ram. Plaintiff No.1 along with said Sh. Ranu is recorded owners in possession of the land comprised in Khata No.28, Khatauni No.39, Khasra Nos. 639 and 649, measuring 8-13 bighas situate in Mouza Tiari, Tehsil, Chopal, District Shimla. Sh. Ranu Ram has died 27 years back and plaintiff No.2 was minor at that time. The defendant taking undue advantage of the illiteracy of plaintiff No.1 and minority of plaintiff No.2 prepared a forged and false Will of 23.05.1980 in the absence and without the consent of Ranu Ram and presented the same before the revenue authorities in years 1982/1984 for incorporation of the revenue entries in his favour, which was rejected on 11.11.1987 by the A.C. 1st Grade on the ground that the same be got registered under Section 40/41 of Indian Registration Act. Plaintiff No.2 had also raised objections through her brother that the “Will” was forged. The defendant slept over his right and after a gap of about nine years initiated proceedings under Section 40-41 and got the 'Will' registered, falsely in the absence of the plaintiff and that the same is forged, wrong, incorrect and contrary to the facts and liable to be set aside. The defendant along with one Murat Singh instead of perusing the “Will” preferred an application for correction of revenue entries under Section 37 of the H.P. Land Revenue Act before the A.C. 2nd Grade, Chopal on 22.03.1993, with regard to the suit land. The defendant in the proceedings admitted the status of the plaintiff No.1 as legal representative of Sh. Ranu Ram. Mutation No.471 of 14.06.1996, on the basis of “Will” is wrong, illegal and incorrect. The defendant was threatening to dispossess the plaintiff from the suit land. So, the plaintiffs have filed the instant suit. 3. The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections qua, maintainability, estoppel, limitation and non joinder of necessary parties. ON merits, the defendant has averred that the suit land is owned and possessed by the defendant to the extent of ½ share and the remaining suit land is in possession of Sh. Murat Singh. The entries in favour of plaintiffs are contrary. Sh. Ranu Ram executed a valid Will during his life time in sound state of mind to the knowledge of the plaintiff No.1 and the general public. Murat Singh. The entries in favour of plaintiffs are contrary. Sh. Ranu Ram executed a valid Will during his life time in sound state of mind to the knowledge of the plaintiff No.1 and the general public. The Will was probated by the defendant in accordance with the provisions of Indian Registration Act and mutation No. 471 dated 14.06.1996 was validly attested. The order of the Assistant Collector 2nd Grade was legal. Sh. Ranu along with plaintiff No.1 had left the village. Sh. Murat Singh and also filed a suit against the plaintiff in respect of half share in the suit land. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the 'Will' dated 23.5.1980 executed by the deceased Ranu in favour of defendant is forged as alleged?OPP. 2. Whether the mutation No.471 dated 14.6.1996 is wrong and incorrect, if so, its effect?OPP. 3. Whether the plaintiff No.2 is a daughter of deceased Ranu as alleged?OPP. 4. Whether the plaintiff is entitled for permanent injunction?OPP. 5. Whether the suit is within time?OPP. 6. Whether in the alternative the plaintiffs are entitled for decree of possession? OPP. 7. Whether the deceased Ranu executed the 'WILL' legal and valid will dated 23.5.1980 in favour of defendant, as alleged? OPD. 8. Whether the plaintiffs are estopped to file the suit on account of their acts of omission and commission?OPD. 9. Whether the suit is maintainable in the present form?OPD. 10. Whether the suit is bad for non joinder of necessary parties?OPD. 11. Whether the suit has not been valued properly for the purpose of Court fee?OPD. 12. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom by the defendant/appellant before the learned First Appellate Court, the latter Court dismissed the appeal and partly affirmed the findings recorded by the learned trial Court. 6. Now the defendant/appellant herein, has instituted the instant Regular Second Appeal before this Court wherein he assails the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. 6. Now the defendant/appellant herein, has instituted the instant Regular Second Appeal before this Court wherein he assails the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission on 26.11.2007, this Court, admitted the appeal instituted by the defendant/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the learned Sub Judge below having held that respondent No.1 Smt. Kamla was only legal heir of late Sh. Ranu, therefore, in the absence of any appeal, on behalf of respondent No.1, Sh. Thisu, such findings cannot be reversed in appeal, as filed by the defendant, by the learned Addl. District Judge, whereby he has held that respondent No.2 was not daughter of Sh. Ranu and therefore, he had exclusively succeeded deceased Sh. Ranu? 2. Whether the findings of the trial court holding respondent No.2 as daughter of Sh. Ranu and for this reason that she is owner in possession of this land, are without legal and valid basis and in the appeal Learned Addl. District Judge below reversed those findings in the absence of any valid reason whereby respondent NO.1 has been held to be owner in possession of suit land? 3. Whether respondents have failed to lead evidence in support of their claim to be in possession of the suit land and on the contrary appellant have pleaded and proved on record that he is in possession of the suit land, therefore, decree of injunction could be passed against him and findings by both the Courts below on the point of ownership and possession of the suit land are self contradictory erroneous and illegal? Substantial questions of Law No.1 to 3. 7. None of the substantial question of law formulated hereinabove appertain to the invalidity of the pronouncements concurrently recorded by both the learned Courts below vis-a-vis the testamentary disposition of deceased Ranu, borne in Ex. DW5/A, being not proven to be validly and duly executed, pronouncements whereof are founded, upon, want of emergence, of, evidence in satiation of apposite thereto statutory principles, enshrined in Section 63 of the Indian Succession Act. Consequently, the findings recorded by both the learned Courts below vis-a-vis Ex.DW5/A being not cogently proven to be validly and duly executed, hence, acquired binding and conclusive effect. 8. Consequently, the findings recorded by both the learned Courts below vis-a-vis Ex.DW5/A being not cogently proven to be validly and duly executed, hence, acquired binding and conclusive effect. 8. Be that as it may, with RSA No. 361 of 2007, constituted before this Court by one Kamla Devi, a co-plaintiff along with Thisu in the apposite Civil Suit, standing dismissed for want of prosecution, thereupon, the findings adversarial vis-a-vis co-plaintiff Kamla Devi recorded by the learned First Appellate Court vis-a-vis hers being, not, begotten from the loins, of, one Ranu, from the latter's marriage with one Kanchu, also acquire(s) conclusivity and binding effect. (i) Nowat, it being proven of the defendant Sohan Singh holding, no, relationship with the deceased rather with proof emanating of co-plaintiff Thisu being the brother of deceased Ranu. (ii) Besides, upon, co-plaintiff Tishu's demise occurring, during, the pendency of the instant RSA before this Court, his name being ordered to be deleted by this Court, (iii) under, orders recorded on 30.09.2016, hence, for rendering a befitting verdict, enjoin(s) an imperative allusion thereto. (iv) Readings, of the, apposite orders, unveils of the reason prevailing with this Court, for, ordering for deletion of the name of deceased Thisu, from, the array of respondents, in the extant appeal, being rested upon, the estate of deceased Thisu, being represented by surviving respondent No.2, one, Kamla, (v) hence, the benefits of the decree rendered vis-a-vis deceased respondent No.1 Thisu, obviously ought to accrue vis-a-vis respondent No.2, given the latter on the former's demise hence representing his estate. As aforestated, with both the learned Courts below, making, a firm binding pronouncement qua invalidity, of, execution of Ex.DW5/A by deceased Ranu vis-a-vis the defendant, (vi) therefrom with defendant Sohan Singh, naturally holding no locus standi vis-a-vis the estate of deceased Ranu, besides obviously vis-a-vis the suit property, rather the estate, of, co-respondent No.1, since deleted from the array of respondents, being for the reasons aforestated, now represented by respondent No.2, consequently, the benefits of the decree ought to accrue vis-a-vis respondent No.2 Kamla Devi. (vii) Dehors the infirmity, if any, in the findings returned by the learned First Appellate Court, upon, the issue appertaining to Kamla not being born, from the loins of Ranu, from the latter's marriage with Kanchu. 9. (vii) Dehors the infirmity, if any, in the findings returned by the learned First Appellate Court, upon, the issue appertaining to Kamla not being born, from the loins of Ranu, from the latter's marriage with Kanchu. 9. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court ahas not excluded germane and apposite material from consideration. All the substantial questions of law are answered in favour of the respondent(s) and against the appellant. 10. In view of the above discussion, there is no merit in the instant appeal and it is dismissed accordingly. In sequel, the impugned judgment and decree rendered by the learned First Appellate Court in Civil Appeal No.150-S/13 of 2000 is affirmed and maintained. No costs. Decree sheet be prepared accordingly. All pending applications also stand disposed of. Records be sent back.