HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 300 of 2005. Reserved on: 14.3.2008. Decided on: 7.4.2008. Siri Ram ………Appellant. Versus Sukh Dev and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Bhuvnesh Sharma, Advocate. For respondent No.1: Mr.Bhupender Gupta, Senior Advocate, with Mr.Janesh Gupta, Advocate. V.K. Ahuja, J: This is a regular second appeal filed by the appellant against the judgment and decree of the court of learned Additional District Judge, Ghumarwin, dated 17.3.2005, vide which the appeal filed by the appellant against the judgment and decree passed by the learned Senior Sub Judge, Bilaspur camp at Ghumarwin on 31.10.2000, dismissing the suit of the appellant for declaration and injunction, was dismissed. ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Briefly stated the facts of the case are that the appellant as plaintiff filed a suit for declaration and permanent injunction as against the respondents in regard to the land in dispute measuring 9 bighas, as detailed in the plaint. It was alleged by the plaintiff that Smt.Kirpo Devi was joint owner in possession of the land measuring 49-14 bighas, as detailed in the plaint. Smt.Kirpo Devi died on 13.5.1993 and it was alleged that she was succeeded by plaintiff and defendant No.1 being her nephews and they are co-owners in possession in equal shares of the suit land. It was alleged that the deceased has not executed any document during her life time. She was physically and mentally weak and defendants are threatening to get the mutation attested in their favour on the basis of the Will which was the result of fraud, misrepresentation and undue influence, hence the suit filed by the plaintiff. Defendants pleaded that defendant No.1 was owner in possession of the suit land by virtue of Will, dated 10.4.1991, executed by the deceased in favour of defendant No.1 since she was being looked after and maintained by defendant No.1 and she had executed the Will in favour of defendant No.1 in sound disposing mind and out of her free will. The learned trial Court mainly framed issue in regard to the validity of the Will and on conclusion of the trial, dismissed the suit of the plaintiff holding that the Will was validly executed in favour of defendant No.1, who was entitled to succeed to the estate of Smt.Kirpo Devi. Those findings, on appeal by the appellant, were affirmed by the learned First Appellate Court. I have heard the learned counsel for the parties and have gone through the record of the case. - 3 - The submissions made by the learned counsel for the appellant were that the findings of both the courts below, particularly on issue No.3 in regard to the Will, are wrong since the deceased was blind, was not mentally fit to execute the Will and there was no proof that the deceased was being looked after by respondent No.1 till her death and as such there was no question of execution of any Will by the deceased in favour of defendant No.1 to the exclusion of the plaintiff. It was also pleaded that father of defendant No.1 had taken active part in the execution of the Will and no independent witnesses were associated at the time of execution of the Will and, therefore, the decrees passed by both the courts below are liable to be set aside. On the other hand, the learned counsel for respondent No.1 had supported the impugned judgment for the reasons recorded therein. From a perusal of the pleadings of the plaintiff himself, it is clear that the plaintiff and defendant No.1 are both nephews of the deceased Kirpo Devi. The relationship in between the parties has been clearly shown by the learned First Appellate Court in the pedigree table in para 12 of the judgment, which substantiates the plea of the plaintiff and not disputed by defendant No.1 that both plaintiff and defendant No.1 were the nephews of the deceased. A perusal of the judgment of learned trial Court shows that the learned trial Court had considered the question in regard to the age of the deceased being 80 years. It had also observed in para 7 of the judgment that the deceased had come herself to Ghumarwin from the village and even walked on foot to the courts at Ghumarwin, which clearly shows that the deceased was physically fit. The defendants had also examined the then Sub Registrar apart - 4 - from the attesting witnesses DW-3 Birbal Ram and DW-4 Ganga Ram. The learned trial Court had also concluded on the basis of the evidence that the deceased was being looked after by defendant No.1 and his father. All these points were also considered by the learned First Appellate Court in its impugned judgment. No specific evidence, oral or documentary, was pointed out by the learned counsel for the appellant during the course of arguments which was not considered by the learned trial Court or the learned First Appellate Court in coming to its findings. The only submissions made were in regard to minor contradictions in the statements of the witnesses as to how much time has taken for the scribe to complete the papers of the Will, whether it was one hour, as stated by the scribe, or four hours as stated by the marginal witness DW-4. The other contradiction was in regard to the amount paid to the scribe and these points do not arise for consideration or they do not lead to an inference that there has to be reappraisal of evidence by this Court. All these minor points are in regard to minor contradictions and these pleas have been considered by the learned trial Court and there cannot be reappraisal of evidence afresh by this Court sitting in second appeal. The learned courts below have also considered the question of active participation of the father of the propounder of the Will and had observed that being in old age, the deceased needed assistance and, therefore, this was not found a ground to disbelieve the validity of the Will set up by the defendant, which has been duly proved by the statement of the marginal witnesses and the statement of the Sub Registrar. - 5 - The substantial question of law formulated at page 6 of the appeal is also in regard to the material contradictions in the statements of the witnesses and that the findings given are vitiated because of mis-appreciation and misreading of oral and documentary evidence, but which document or oral evidence was mis-appreciated or misread could not be substantiated during the course of arguments to hold that the substantial question of law is made out for admitting the appeal. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant. No case is made out for admitting the appeal and as such the same is dismissed. The parties are left to bear their own costs. In view of the final disposal of the main appeal, all the pending miscellaneous applications shall also stand disposed of. April 7, 2008. (V.K. Ahuja), (TILAK) Judge.