< ^ HIGH COURT OF CHHATTISGARH. BILASPUR SINGLE BENCH-HON'BLE SHRI DIUP RAOSAHEB DESHIVIUKH. J. SECOND APPEAL N0. 358 OF 2008 APPELLANT DEFENDANT RESPONDENTS PLAINTIFFS Alakhram VERSUS Smt.Rajkunwar and Others Post for Judament: 6\ -04-2007 Sd/- Dilip Raosaheb Deshmukh Judge r -1- < -1 HIGH COURT OF CHHATTISGARH. BILASPUR SINGLE BENCH-HON'BLE SHRI DILIP RAOSAHEB DESHMUKH. J. SECOND APPEAL N0. 358 OF 2006 APPELLANT DEFENDANT RESPONDENTS PLAINTIFFS y' Alakhram S/o. Tijauram Marar, Aged about 50 years, R/o Ambagarh Chouki, Tahsil-Chouki, District-Rajnandgaon (CG) VERSUS 1 (A) Smt.Rajkunwar Wd/o. Sagnuram, Aged about 60 years, 1 (B) Smt. Shanti Bai D/o Late Sagnuram, Aged about 40 years 1 (C) Smt. Kunti Bai, D/o Late Sagnuram, Aged about 37 years, 1 (D) Ganesh Ram, S/o Late Sagnuram, Aged about 37 years, 1 (E) Santram S/o Late Sagnuram Aged about 33 years, 1 (F) Santri Bai, D/o Late Sagnuram, Aged about 30 years, 1 (G) Parmila Bai, D/o Late Sagnuram, Aged about 28 years. All above R/o. Viliage-Ambagarh Chouki, Tahsil-Ambagarh Chouki, District-Rajnandgaon (CG) 2. Pardeshnin Bai, W/o Rahipal Marar, Aged about 45 years, R/o Village Kanhe, Tahsil- Ambagarh Chouki, District- Rajnandgaon (CG) 3. Sonsir Bai, W/o Munna Yogi, Aged about 40 years; R/o- Ambagarh Chouki, District-Rajnandgaon (CG) 4. Ramkali Bai, D/o Tijau Marar, Aged about 35 years, R/o Village-Gidarri, Tahsil-Dongargaon, District-Rajnandgaon, (CG) 5. Temlat @ Temu S/o Fakir, Aged about 21 years (now), 6. Hemlal, S/o Samaru, Aged about 18 years (now), Both are R/o Village-Bendakodo, Tahsit-MohIa, District-Rajnandgaon (CG) 7. State of Madhya Pradesh (Now Chhattisgarh), Through: Collector, Rajnandgaon,'(CG) Presenfc- Shri Manoj Paranjpe, Counsel for the appetlant. Shri Akhil Agrawal, Panel Lawyer for the Respondent No.7/State. JUDGMENT (Deiivered on c9.04.2007) RESPONDENTS DEFENDANTS 'c z. ^ ^ The appellant/defendant is aggrieved by the dlsmissal of his appeal vide judgment and decree dated 24-06-2006 passed in Civil Appeal No.45-A/2003 by the District Judge, Rajnandgaon whereby the judgment and decree passed in Civil Suit N0.16-A/1988 on 04-08-2000 by the Civil Judge Class-l, Ambagarh Chowki decreeing the piaintiffs suit for dectaration of title and permanent injunction was affirmed. (2) It is not disputed that Hironda Bai was the owner of the suit land i.e. Khasra No.206/2 area 1.85 acres, Khasra No.247/3 area 0.07 acres and the house constructed on Khasra No.247/3 situated in Ambagarh Chowki, Tahsil- Mohaila, District-Rajnandgaon (hereinafter referred to as <( Suit Property"). It is a!so not disputed that the deceased Sagnu Ram was the brother-in-law of Hironda Bai. (3) Sagnu Ram instituted Civit Suit No.16-A/1988 for declaration of his title and permanent injunction against the defendants on the ground that Hironda Bai had executed a registered wilt of the suit properties in his favour on 27-08-1984. The defendants had in coliusion with the Revenue Officials obtained an order of mutation of their names over the suit property on 17-02-1988 which had cast a cioud over hls title. (4) The defendants resisted the suit pleading that the house situated on the suit property were constructed by them and that Sagnu Ram taking advantage of the iltness of Hironda Bai got a forged will executed by obtaining thumb impression of Hironda Bai while she was unconscious. It was aiso pleaded that on an eariier occasion i.e. on 08-07-1985 Hironda Bai had executed a witl in favour of Alakh Ram and Jugri Bai. (5) The iearned Civit Judge Ctass-1, Ambagarh Chowki, recorded a finding that execution of e last will on 27-08-1984 by Hironda Bai was legaliy •4-->-' '^^S'iiiSi^^^Sii'ii'S r?i,;:tg 'K^ ^ estabiished and therefore granted a decree for declaration oftitle and permanent injunction in favour ofthe plaintiff Sagnu Ram. (6) Being aggrieved by the aforesaid order, Alakh Ram, the defendant No.1 preferred Civil Appeal No.45-A/2003 before the District Judge, Rajnandgaon. During pendency of this appeal, Sagnu Ram died and his iegal representatives were brought on record. The First Appetlate Court on a proper appreciation of evidence, oral as weli as documentary afflrmed the finding recorded by the Court below that the execution of tast wili executed by Hironda Bai on 27-08-1984 was proved and dismissed the appeat. (7) Shri Manoj Paranjpe, learned counsel for the appellant has urged that execution of witl by Hironda Bai was not established and both the Courts beiow did not properiy appreciate the evidence avaiiable on record and overlooked the material discrepancies therein. !t was urged that the evidence led by the plaintiff reveaied that Hironda Bai's thumb impression was obtained on the will dated 27-08-1984 after the attesting witnesses had signed the document. Reliance was piaced on Giria Datt Sirsah Vs. Ganaotri Datt, reported in A.I.R.-1955-S.C.-34®, H. Venkatachala Ivencsar Vs. B,N.Thimmaiamma and Others reported in A.I.R.-1959-S.C.-443 and Kunwar Sai Vs. Baiva Bai passed by this Court vide orai order dated 29-08-2006 in Second Appeal No.56 of 2006. A discrepancy whether the Will was written by pencil, pen or was typed was also pointed out. it was strongiy urged that the executlon of wsll as required by Section-63 of tndian Successlon Act was not proved. (8) Having considered the submissions of learned counsei for the appeilant, 1 have perused the record. !t is not disputed that the will dated 27-08-1984 bears the thumb impression of Hironda Bai. The said will is a registered document which strengthens the presumption of its authenticity. -^ 4 (?^ (9) The scribe Bhagwat Prasad Tiwari was also examined by the defendanVappetiant as D.W.-1. His testimony that he had written the witt of Hironda Bai as told by her and had thereafter read over the same to Hironda Bai and that the attesting witnesses had signed after Hironda Bai had put her thumb impression on the wiil, is wholiy unrebutted. Ganga Prasad, PW-2 an attesting witness was aiso examined by the piaintiffwho has corroborated the testimony of Bhagwat Prasad by deposing that the document typed by Bhagwat Prasad was read over to Hironda Bai in presence of the Registrar and thereafter Hironda Bai had affixed her thumb impression on the wil! deed. Another witness Ram Singh Thakur DW-3 has also corroborated the above fact that the attesting witness had signed the wiil after it was read over to Hironda Bai who had afRxed her thumb impression thereon. In this manner, there is overwheiming evidence on record which proves the authenticity of the witl executed by Hironda Bai in favour of Sagnu Ram. The mere fact that in para-9 of the cross-examination of Sagnu Ram, it has emerged that Hironda Bai had slgned the documents after the attesting witnesses had signed it wouid thus not be sufficient to discard the entire evidence availabte on record. (10) Having thus considered the submissions of the learned counsel for the appeilant and after perusa! of the record of Civil Suit No.16-A/1988, i am of the considered opinion that both the Courts beiow have on a proper appreciation of evidence both orai as well as documentary avaitabte on record, recorded a finding that execution of registered will by Hironda Bai on 27-08-1984 in favour of Sagnu Ram was legatiy estabtished. (11) In this view of the matter, no substantial question of law arises for determination in this Second AppeaJ which is accordingly dismissed at the stage of admission. There shatt be no order as to costs. DilipRaos Sd/- ahebDestimukh Judge ^^^-v ^