t'r .^ BEFORE THE HON'BLE HIGH COURT OF CHHATTCSGARH /\T BILASPUR iC.6.} SECOND APPEAL N0. 5 0/2008 ^PPELLANT Z^DEFENbANT lagoyee Singh, aged about 40 years, son of Shri Dharmdeo occupation - Labourer, resident of villGge Kudhroom, P.S. Ranka, bistt. Gadhwa, presently resident of village Deviganj, Tahsil Paal, Distt. Sarguja (C6) -.1i <^.^ RES-PONDENTS ^LAINTIFF v/s. l^ Smt. Etwariya Devi, qged about 40 PLAINTIFF ^ ^ ^s^ .UM^^( •^^--"" years, wife of Shri Jaishree Singh, Awadh Bihari son of Jaishree Singh, aged about 19 years, Both are resident of village Deviganj, Tah. Paal, Distt. Sarguja (C.G.) State of Chhattisgarh, through the District Cotlector, Ambikapur, Distt. Sarguja (CG) DEFENDANT FORM/\L PART/ SECONb APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE. 1908 ^ssa~'^ /y^ ^"\ N3GH COURT OF CHHATTSSGARH AT BSLASPUR Bencti: Hon'ble Shn Justlce Prashant Kumar Nllshm SeconcS Aopeal No. SO of 2008 Jhagayee Slngh Versus Smt. Etwarlya Devl & others ORDER Postfor 19-08-2010. Sd/- Prashant Kumar Mishra Judge I^-QS-^F'ICI— •^••.•..-- ^^. %^:wsis^. l ligyij •^/ '^•^^y^ NIGH COURT OF CHHATTISGARH AT BILASPUR Sirsals B©nch:Hon'ble Shri JusSice Prashant Kumar ^ishra APP6LLANT Second ApReaS No.50 / 2008 Jhagayee Slngh Versus Smt. Etwariya Devl & others. Shn A. N. Bhakta, counsei forthe appeitant. Shri R.D. Shnvastava, counsel for respondsnts No. 1 & 2. Shrl Ajay Owlvedl, Oeputy Govt. Advocateforthe State. SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE JUDGMEMT 1&>-.08.20101 Heard. (2) The Instsnt second appeat has been preferred by the ctefendant challenglng the judgment and decree passed by the first appetiate Court decreeing the pialntlffs' sutt for deciaratlon of title and permanent Injunction. The triai Court had dssmlssed the suit however the appetlate Court has alloweci the flrst appeal fsied by the platntlff and whiSe setting aside the judgment and decree ^issed by the trial Court, the Impugned judgment and decree has been passed. (3) The respondents No. 1 & 2/ ptaintiffe are the Segal representatlves of origlnal ptalntiff Ramdeiya who had filed the sult for declaratlon of tltte and permanent injunctlon on the pleadlngs that the land betong to (ate Devsas whlch has been recelved by the piaintlff in siKscesslon. Accorcting to the plaintlff he is the sole surviving heir of deceased Devsal and hls widow Etwariya Devi, belng the wsdow of the fsrst cousln of Devsa's. After 7^". / death of Devsal the land was recorded In the name of Sate Manu Khatrwar h^iib 1 ^•"" ^ € ^ '^ -^'' -^,- the husband of origtnal ptaintiff Ramdeiya and after death of Manu Khasrwar pjatntlffs name v/as recorded. The name of present plalntlffe / respondents No. 1 & 2 was substituted after death of Ramdelya in January, 2005 on the ground that Ramdeiya had executed a reglstered WILL dated 20-10-1994 in favour of the plaintlffs/respondents No. 1 & 2. $t was pieaded by the plaintlff that the defendant / appellant got recorded his name in the revenue record on the basis of a forged Warisnama however on the objection of the origlnal ptalntiff Ramdelya the name of the defendant No. 1 was deleted. The sald order was chailenged before the Sub Osvisional Offlcer who remanded the matter and the Tahslldar, remand, passed an order In favour of the defendant No.1 pSalntlfis, and the appea! against the order of Tahslidar was dismissed by the Sub Divisional Offlcer, Ramanujgan] on 29-01-2(X)2. (4) According to the plalnttffs, the defendant No.l/appeSSant is not related to Devsal or hts wldow Etwariya Devl and as such he has no right, tltSe and Interest in the sult property. (5) According to the defendant / appellant, he was residlng wtth Devsal from the chltdhooci and therefore Etwariya Devi executed the Warisnama tn his favour. He further stated that slnce the origtnal plaintlff Ramdelya had no rsght, tltte or inter^t sn the property, executlon ofWILL $n favour of present pSalntlff Is of no consequence. He defended the orders pas^d by the revenue Court by submttting that since he was resjdlng wth Devsal and Etv</ariya Devi and had performed the essentlai ceremony after death of Devsal and Etwarlya Devi, hls name has rightly been recorded in the revenue records on the of WILL. •^' ...^: ^." -'••: '5- (6) The trial Court dismtes the suit after findlng that the WILL dated 01 - 01-1989 executed by Etwariya Devi In favour of defendant / appellant Jhagayee Singh has been proved and thus after execution of this WJLL nothing remasned for original pialntsff Ramdelya to succeed and thus the ptasntlffs ciaim for declaratson oftitle is not proved. (7) The platntifts f respondents No. 1 & 2 prefsrred the first appea! which has been allowed by the flrst appeltate Court after recordlng a fjndlng that the WILL (Ex.0/1) executed by Etwariya Devl in favour of defendant Jhagayee Singh is not proved besng susplclous and slnce Jhagayee Singh ts not the helr of Devsai and Etwariya Devl and is ateo not an adopted son, he has not acqulred titie to the sult property. (8) The questton of <aw framed by this Court for determlnatlon sn this Is to the fotlQwing effects:- "1, (8) Whether any fegaS right existed m Ramdalya on 20- 10-1994 to execute a wiSf m favour of respQndents No.1 & 2? (b) ff not, whether the lower sppeffate Court errecf m grQn^ng reffef m favow of respondents/ptamtiffs on the basls of the regsstered wlfl dsted 20-10-1994 sxscuted by Ramdaiya ?" (9) The questson of law framed by th'ss Court is In two parts the first part ts as to whether any tegat right exlsted sn origlnal ptaintiff Ramdelya on )-10-1994 to execute a WILL sn favour of respondents No. 1 & 2 who are the substltuted ptalntlff after death of original ptalntlff Ramdeiya. The answer to the second part of the question woutd depend upon the answer to the flrst question. In order to determine and answer the first part of the questlon It Is to be determlned as to whether in between Ramdelya and Jhagayee Slngh who has the better and subststtng titte on the date of .^•' ,,A. ^.. -^ --4- tsttng of the sult and thereafter tltl ^)-10-1994 when Ramdelya executed the WILL in Tavour of the substltuted ptalntlffe. it $s also to be consldered as to whether the document Ex.D/1 conferred any tltte on defendant / appellant Jhagayee Slngh by vlrtye of the sald document belng a WSLL othen?/ise Jhagayee Slngh belng not related to Etwariya Devs not talt In tlne of successlon. (10) Ex.D/1 is a document captlonect as 'Warisnama'. The trial Court has treafed thls ctocument dated 01-01-1989 as a WILL and has found it to be proved whereas the flrst appellate Court has found thte document to be susp'ctous and not retlabte so as to confer tttie on Jhagayee Slngh after of Et^/ariya Devi. To prove Ex.D/1 defendant Jhagayee Slngh nas examlnea QV\H2 Rameshwar Singh, DW/3 Shlv Narayan Slngh and OW/4 Arjun Slngh. The flrsf appeltate Court has ctlsbeSieved the ststements of the attestlng witnesses on the ground that there are GontradlctlQns tn the statements of attestlng witnesses as to at what tlme t'ne said document was written or executed. DW/2 Rameshwar Ssngh has that when the document was written tights were on but nlght has not t'allen. meantng thereby that at the time of writlng of thls document it iate evenlng. DW/3 Shi Narayan Singh has stated that the aocument executed at about 4.00 P.M. In the evensng. This is the scribe of the dc^ument. He says that Manu and Dev 3m (husband of execytant Etwariya Devl) were hte cousin brother. In hte examlnatlon he further sa^ that he ts confldent that the document was not wrttten In the evenlng. When he was confrQnted wlth hls the Sub Divtelonaj Officer where he had stated that the / w?1tten at about 12.00 noon, the witness he does not .^&f -5- remember the statement. DWM Arjun Slngh also says that the document written between 4 to 5 PM. he denies the suggestlon that the doc.ument was written sn the night. tn the record the certifsed copy of of Jhagayee Singh recorded in the Court of Tahsildar is In the statsment he states that the document Ex.D/1 was written by Etv-fariya Devl, he later on says that It was wrttten by R.aiTsashankar whereas, as eariier nottcect, DW/3 Sh'sv Narayan Slngh has statement in this sult that the document was wrltten by him. Before the Tahsildar, Jhagayee Slngh further states that the document written In the house of Ramashankar and Etwariya Devl. (11) From the contradtctlors and discrepancses In the statements of the timtng of the executson of the documentas also as to who has written the document, it becomes highly doubtfuS as to Its authentlcity. Thus, the ftrst appetlate Court has not committed any error m the document Ex.0^1 ts a susplclous document. (12) If the document Ex.D/1 does not Insplre confidence and cannot be In favour of appeitant Jhagayee Singh, tt Is now to be seen as to whether the original plalnttff f Ramdetya had a better tltle to the sult than the appellant Jhagayee Slngh. It Is an admltted fact that and Etwarlya Devi had no Issues. it Is also an admitted fact that was the widow of Devsal's brother Manu and she alone was the survlvlng member In the family, her husband IVIanu havsng Name of Ramdeiys was recordect on the iands betonging to Manu as his heirs. Thus Ramdelya was the successor to the ^eperty to Devsai snd Etwariya Devl. The triat Court had the WtLL executed by Ramdelya In favour of substttuted ^.-., •% -6- pjaintiff. However, the appetlate Court, whlch ss the flnal Court with to findlng of fact has apprectated the evictence of the attestlng wstnesses to thls document namely Laxman Prasad PW/2 and Shlvnandan Slngh PW/3. The WSLL ctated 20-10-1994 Is r^istered document. Both the attesttnQ witnesses have supported the document by stating that they have signed over the d<x;ument tn the presence of executant and the excutant has ateo slgned the document In thelr presence. Thus the ftrst appetSate Court has not committed any error sn holdlng that the WILL dated 20-10-1994 (Ex.P/6) by Ramdeiya m favour of substltuted platnttt'f/responctents No. 1 & 2 has been proved in accordance wtth Saw. (13) In vlew Qt' the above thls Court answers the flrst part of the questlon of taw agalnst the appeSiant and In favour of pialntiffs.'respondents NQ. 1 & 2 to ho(d that a tegaS right was exlstlng In Ramdeiya on 20-10-1994 to executelhe WtLL in favour of respondents No. 1 & 2, In view of the answer to the first part of the substantiaS questlon of taw against the appeltant. There Is no necessity of aetermlntng the second part of the substantlal questlon of iaw. (14) In the resuSt the snstant appeat fails and is hereby dismlssed. Sd/- Prashant Kumar Mishra Judge t-