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2022 DIGILAW 977 (ALL)

Santosh Kumar v. Munna Lal @ Munnu Lal

2022-06-27

ROHIT RANJAN AGARWAL

body2022
JUDGMENT : 1. Heard Sri Shrinath Dwivedi, learned counsel for the appellants, Sri Sanjeev Kumar Shukla, Advocate, holding brief of Sri Mahesh Kumar, learned counsel for the respondent and perused the material on record. 2. This is plaintiffs' second appeal filed under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") arising out of judgment and decree dated 23.12.2021 passed by Additional District Judge, Court No.4, Kaushambi in Civil Appeal No.01 of 2021, by which the appeal preferred by defendant-respondent has been allowed and judgment and decree dated 14.12.2021 passed by Civil Judge (Junior Division), Kaushambi in Original Suit No.143 of 2010 has been set aside. 3. The facts in brief, as disclosed by the parties in the pleading are that plaintiff-appellants and defendant-respondent are the sons of late Kedar Nath. Kedar Nath was initially married to the mother of defendant Munna Lal. After her death, late Kedar Nath married the mother of plaintiffs. According to the plaint allegation, late Kedar Nath had executed a registered Will dated 08.9.1997 in favour of plaintiffs-appellants for Arazi No.45. Late Kedar Nath had got purchased Arazi No.398 measuring 17 biswa in favour of defendant, so that no dispute may arise between his sons. However, the defendant sold the said Arazi No.398 during life time of Kedar Nath. Kedar Nath died on 03.12.2009 and thereafter defendant started claiming half of the share in the property, which led to filing of Original Suit No.143 of 2010 by the plaintiffs seeking relief of permanent injunction restraining the defendant from interfering in their peaceful possession over the property. The plaintiffs have relied upon the Will executed by their father on 08.9.1997. The said suit was contested by the defendant Munna Lal by filing written statement and stated that the Will dated 08.9.1997 was forged and fabricated and therefore, he was entitled to half of the share in the property. 4. From the pleadings of the parties, the Trial Court framed issues, which are extracted hereas under : ^^1- D;k nkok oknhx.k esa of.kZr oknxzLr lEifÙk ds oknh Lokeh o dkfct n[khy gS\ 2- D;k nkok vYiewY;kafdr o çnÙk U;k;'kqYd vi;kZIr gS\ 3- D;k nkok oknh ds lquokà dk {ks=kf/kdkj bl U;k;ky; dks gS\ 4- D;k oknhx.k fdlh mi'ke ds vf/kdkjh gS\** 5. Issue No.1 was in regard to the fact whether plaintiffs were the owner in possession over the property in dispute. Issue No.1 was in regard to the fact whether plaintiffs were the owner in possession over the property in dispute. The Trial Court relying upon the registered Will dated 08.9.1997 held the plaintiffs appellants to be owner in possession over the property in dispute and decreed the suit vide judgment and decree dated 14.12.2020. Against the said judgment Civil Appeal No.1 of 2021 was preferred by the defendant-respondent wherein the lower Appellate Court framed following point of determination : ^^çLrqr nhokuh vihy esa eq[; fopkj.kh; fcUnq ;g gS fd D;k oknhx.k larks"k dqekj vkfn oknxzLr lEifÙk of.kZr okn i= ds rugk ekfyd dkfct gS \ çLrqr nhokuh vihy dk fuLrkj.k blh ifjis{; esa i=koyh ij miyC/k lk{; ds vk/kkj ij fd;k tkuk mfpr çrhr gksrk gS\ 6. The lower Appellate Court found that reliance placed by the Trial Court upon execution of Will dated 08.9.1997 was not correct as the mandatory requirement under Section 68 of Indian Evidence Act, 1872 (hereinafter referred to as “Act, 1872”) was not complied with and no attesting witness has come forward to prove execution of Will. The lower Appellate Court vide judgment dated 23.12.2021 allowed the appeal and set aside the judgment and decree of Trial Court hence this appeal. 7. Sri Shrinath Dwivedi, learned counsel appearing for the appellants submitted that the lower Appellate Court was not correct in holding that the Will, which was executed by the father of the plaintiff and defendant on 08.9.1997 was required to be proved as in the mutation proceedings, the execution of Will had already been proved by the plaintiffs and there was no such requirement in the present proceedings. He next contended that it was a suit only for permanent injunction and the Court was only to see that the plaintiff was in possession which the Trial Court found on the basis of the Will executed in the year 1997 and decreed the suit. 8. According to the appellants’ counsel as there is no need for obtaining a probate in the State of U.P., hence the plaintiffs-appellants have not applied for the same and the Will being a registered document, needs no proof of execution. Reliance has been placed upon decision of Apex Court in case of Chiranjilal Shrilal Goenka (Deceased) through Lrs. Vs. Jasjit Singh and Ors. Reliance has been placed upon decision of Apex Court in case of Chiranjilal Shrilal Goenka (Deceased) through Lrs. Vs. Jasjit Singh and Ors. (1993) 2 SCC 507 and decision of coordinate Bench of this Court in case of Smt. Usha Devi vs. Smt. Anita 2017 (11) ADJ 628 . 9. Learned counsel appearing for the defendant-respondent submitted that the entire case of the appellants hovered around the relief of permanent injunction on the basis of the Will executed on 08.9.1997. According to the defendant, the Will is forged and burden of proving execution of the Will was upon the plaintiffs-appellants which they failed to discharge and the lower Appellate Court rightly allowed the appeal of the defendant. He next contended that the Trial Court wrongly decreed the suit of the plaintiffs relying upon the Will dated 08.9.1997 without proof of execution of the Will as required under Section 68 of the Act, 1872. Reliance has been placed upon decision of the Apex Court in the case of Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and Ors. (2008) 15 SCC 365 . 10. I have heard the rival contention of the parties and perused the material on record. 11. The entire case of the plaintiffs-appellants rest on the fact that a registered Will was executed in their favour by late father Kedar Nath on 08.9.1997 and execution of the said Will has been proved in the mutation proceedings, thus there is no requirement for proving execution of the Will before Civil Court. 12. Section 68 of Act, 1872 provides for proving of execution of document required by law to be attested. 12. Section 68 of Act, 1872 provides for proving of execution of document required by law to be attested. For ready reference Section 68 is extracted hereasunder : "Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." 13. Act, 1872 being a procedural law and Section 68 provides for proof of execution of a document, which is required by law to be attested. Proviso to Section 68 requires that in case of proving of Will, the same has to be done through attesting witness. 14. The legislature had required the procedure for proving execution of Will through an attesting witness in a suit filed by a party relying upon execution of Will. The benefit cannot be granted unless execution of document required by law to be attested is proved. In the present case, the entire case of the plaintiffs-appellants hinges around the Will executed by late Kedar Nath on 08.9.1997 in their favour, on the basis of which relief of permanent injunction was sought. 15. The onus of proving execution of Will was upon the plaintiffs, and the same could have been proved by adhering to the provisions of Section 68 of the Act, 1872. 16. In the present case, the Trial Court committed grave error by solely relying upon registered Will dated 08.9.1997 in decreeing the suit without complying the provisions of Section 68 of Act, 1872. The requirement was mandatory. Unless execution of Will was proved by one of the attesting witness, the issue framed in regard to ownership and possession on the basis of Will could not have been decided. The Trial Court arbitrarily and illegally decreed the suit of plaintiffs without execution of Will having been proved by the attesting witnesses. The requirement was mandatory. Unless execution of Will was proved by one of the attesting witness, the issue framed in regard to ownership and possession on the basis of Will could not have been decided. The Trial Court arbitrarily and illegally decreed the suit of plaintiffs without execution of Will having been proved by the attesting witnesses. The argument of appellants’ counsel that execution of Will was proved during mutation proceedings cannot be accepted, as mutation proceedings are summary in nature and are conducted in Revenue Court. 17. The proceedings before the Civil Court required that the plaintiffs should have proved his case by proving execution of Will through attesting witness. Moreover, the Trial Court failed to consider that once the Will was under cloud and there was denial by the defendant as to the execution of Will, it very much mandated that its execution was to be proved, as required under the law. The Apex Court in Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs. and others (2008) 4 SCC 594 had cleared the air in regard to principle as to when a suit for permanent injunction would lie. Relevant paras 13 and 21 of the judgment are extracted hereas under : "13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. 13.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 13.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 13.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 13.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction." "21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under : (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case." 18. It is no doubt correct that a Will executed under Section 63 of the Indian Succession Act, 1925 (hereinafter referred to as “Act, 1925”) has to be proved that it was executed, at least by one of the attesting witness under Section 68 of Act, 1872. The requirement of Section 63 of Act, 1925 read with Section 68 of Act, 1872 has already been considered and upheld by the Apex Court in case of B. Venkatamuni Vs. C.J. Ayodhya Ram Singh and others, 2006 (13) SCC 449. 19. The case laws cited by the appellant are not applicable in the present case as there is no issue as to the grant of probate. C.J. Ayodhya Ram Singh and others, 2006 (13) SCC 449. 19. The case laws cited by the appellant are not applicable in the present case as there is no issue as to the grant of probate. The only question is that when the Court of first instance had decreed the suit on the basis of the Will dated 08.9.1997, it should have got the execution of the Will proved through attesting witnesses before deciding the issue. Thus, this Court finds that the lower Appellate Court had rightly set aside the judgment and decree passed by Trial Court and allowed the appeal of the defendant-respondent. 20. The Apex Court in Civil Appeal No.8971 of 2010 (Kripa Ram (deceased) through Legal Representatives and others vs. Surendra Deo Gaur and others decided on 16.11.2020 has held that the second appeal can be dismissed without even formulating the substantial question of law. Relevant paras 25 and 26 reads as under : "25. In a judgment reported as Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar (2015) 16 SCC 763 , this Court held that the second appeal can be dismissed without even formulating the substantial question of law. The Court held as under: "18. In the light of the provision contained in Section 100 Code of Civil Procedure and the ratio decided by this Court, we come to the following conclusion: (i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law; (ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the Respondent; (iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 Code of Civil Procedure.” 26. In view of the above findings, we do not find any error in the judgment and order of the High Court dismissing the Second Appeal. The present appeal is thus dismissed. Pending applications, if any, shall stand disposed of." 21. In view of the above findings, we do not find any error in the judgment and order of the High Court dismissing the Second Appeal. The present appeal is thus dismissed. Pending applications, if any, shall stand disposed of." 21. Having considered the case of the plaintiffs-appellants, I find that no substantial question of law arises and lower Appellant Court had recorded categorical finding against the plaintiffs-appellants which need no interference by this Court. 22. The appeal lacks merit and is hereby dismissed.