Research › Search › Judgment

Himachal Pradesh High Court · body

2021 DIGILAW 229 (HP)

Basti Ram v. Ramesh Kumar

2021-04-09

SURESHWAR THAKUR

body2021
JUDGMENT : SURESHWAR THAKUR, J. 1. The plaintiff filed Civil Suit bearing No. 36/1 of 2001 before the learned Civil Judge (Senior Division), Shimla. In the afore civil suit, he propounded the testamentary disposition of one Jewanoo Ram. The afore testamentary disposition was executed on 9.6.1991. The plaintiff also claimed therein rendition, of, a declaratory decree that he be declared, the, owner of the suit land, and, he further claimed rendition of a decree of possession, vis-a-vis, the suit khasra numbers. The plaintiff's suit became dismissed by the learned trial Court. 2. The plaintiff becoming aggrieved, reared an appeal thereagainst before the learned District Judge, Shimla. Upon Civil Appeal No. 67-S/13 of 2011, the learned first Appellate Court in its judgment made thereon, on 20.09.2013, upheld the validity of the Will made by the deceased testator, vis-a-vis, the plaintiff. However, in the operative part of its verdict, the learned First Appellate Court, made a declaration that Will, Ex.PW2/A, was operative only qua the property mentioned therein, inasmuch, as, qua the property which was a part of litigation between one Kaushlya and Jewanoo, and, as comprised in Khata No. 22 Khatauni No.31, Khasra No.17, situated at Mauja Matholi, Tehsil and District Shimla, H.P. However, a declaration was also made therein, that Ex.PW2/A, did not confer any title, as a legatee, upon, the plaitniff with respect to the land comprised in Khata No.3, Khatauni No.6, Khasra No. 205/111, situated at Mauja Matholi. 2. The plaintiff being aggrieved, from the afore declaration made against him, in the operative part of the judgment made by the learned First Appellate Court, upon, Civil Appeal No. 67-S/13 of 2011, hence, leads him to institute the extant Regular Second Appeal before this Court. 3. When the appeal came up for admission, this Court, on 24th April, 2014, hence, admitted the appeal instituted by the plaintiff/appellant, against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:- 1. Whether the findings of the learned trial Court as well as first Appellate Court are result of complete misreading and misinterpretation of the evidence and material on record and against the settled position of law? Substantial question of Law No.1: 4. Whether the findings of the learned trial Court as well as first Appellate Court are result of complete misreading and misinterpretation of the evidence and material on record and against the settled position of law? Substantial question of Law No.1: 4. Since the controversy embodied in the lis, is, confined to the afore made declaration, against the plaintiff, and as, contained in the operative part of the verdict rendered by the learned First Appellate Court, upon, Civil Appeal No. 67-S/13 of 2011, inasmuch, as, the learned First Appellate Court denying to the plaintiff legatee, the espoused declaration, vis-a-vis, his acquiring title qua the land comprised in Khata No.3, Khatauni No.6, Khasra No.205/11, (i) thereupon, this Court does not deem it fit, to delve into the legality of findings recorded on issue No.1 by the learned First Appellate Court, (ii) rather it confines itself to the legality of the afore contested declaration contained in the operative part of the verdict rendered by the learned First Appellate Court, upon, Civil Appeal No. 67-S/13 of 2011. 5. For determining, the afore ire res controversia, a perusal of Ex.PW2/A is necessary. Ex.PW2/A, does not apart from the property in litigation, as mentioned therein, confer any further right upon the legatee, namely, the plaintiff/appellant herein. The candid and forthright recitals contained in Ex.PW2/A, rather making echoings only with respect to the property in litigation, and, qua where with the plaintiff, became constituted as a legatee, hence obviously are to be constructed stricto sensu. In other words, a literal construction is to be made of the bequeathing recitals contained in Ex.PW2/A, and, no extrinsic evidence, in addition to, or in detraction or in abridgment of the recitals made therein, is either permissible nor can be adduced. Moreover, the intention of the testator is to be gathered from a stricto sensu construction being made, of the recitals, borne in Ex.PW2/A. Since, there is a specific inclusion therein of the bequeathed property, thereupon, only the bequeathed therein property alone goes to the legatee constituted therein, and, no other property, not mentioned therein nor included therein, is permissible to be construed to be bequeathed to the appellant herein. 6. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court are based, upon a proper and mature appreciation of evidence on record. 6. The above discussion, unfolds, 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 has not excluded germane and apposite material from consideration. Consequently, substantial question of Law No.1 is answered in favour of the defendants/respondents, and, against the plaintiff/appellant. 7. In view of the above discussion, there is no merit in the extant appeal, and, it is dismissed. In sequel, the judgement and decree, rendered by the learned First Appellate Court, is, affirmed, and, maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.