HIGH COURTOF CHHAmSGARH.BILASPUR APPELLANTS/: (Plaintiffs) SecOnd ADDealNo.168 of 2008 ^ 1. 2/A. 2/B. 2/C. 3. Jamuna Prasad, S/o Gaya Prasad, aged about 22 yrs., R/o Village Madai Narvadiya, Wd/o about 50 yrs., Ramadhin, aged Swaroop Singh, S/o Ramadhin,, aged about 38 yrs., Sahdev, S/o Ramadhin, aged about 36 yrs., Ramcharan, S/o Thakur Ram, R/o Village Madai 4/A1. Shanti Bai, W/o Late Devendra Kumar 4/A2. Ku. Ishwari, D/o Late Devendra Kumar, aged about 10 years, through her mother Shanti Bai, W/o Late Devendra Kumar, 4/B. 4/C. 4/D. 4/E. 5/A. 5/B. 5/C. 5/D, 6/A. 6/B. 7. Both R/o Village Madai, Tahsil Marvahi, Distt. Bilaspur. Basant Kumar, S/o Tirath Prasad Gond, aged about 35 years Vijay Kumar, S/o Tirath Prasad Gond, aged about 30 years Ku. Sushila, D/o Tirath Prasad Gond, aged about 20 years Ku. Sumitra, D/o Tirath Prasad Gond, aged about 18 years Lilabai, Wd/o Badri about 44 years Prasad, aged Ramesh Kumar, S/o Badri Prasad, aged about 28 years Mukesh Kumar, S/o Badri Prasad, aged about 25 years Jalesh Kumar, S/o Badri Prasad, aged about 19 years Above all R/o Village Madai, Tahsil Pendra Road. Jhabharin, Wd/o Dhyan Singh, age 55 years, R/o Village Jhabar Phool Singh, S/o Dhyan Singh, age 32 years, R/o Village Jhabar Budhhu Singh, S/o Man Singh, aged about 45 years, R/o Sakola, Tahsil Pendra Road, Distt. Bilaspur. ^.:. • T-^?G@S^«"°= RESPONDENTS/: (Defendants) Versus o Deena, S/o Ram Prasad Goni SakQla, Tahsil Pendra Road, Distt. Bilaspur. State of M.P. (Now State of Chhattisgarh), through Collector, Bilaspur (CG) Present: Mr. Manoj Paranjpe, counsel forthe appellants. Mr. Dhirendra Mishra, counsel for respondent No.l. Mr. Sushil Dubey, Govt. Advocate for the State/respondent No.2, APPELLANT/: (Defendant) RESPONDENTS/; (Plaintiffs) AND Second Appeal No.174 of 2008 Dina Gond, S/o Ram Prasad Gond, R/o Village Sakola, Tahsil Pendra Road, Distt. Bilaspur (C.G.) Versus 1. Jamuna Prasad, S/o Gaya Prasad, Caste Gond, aged about 22 years, R/o Village Madai, 2.(a) Narbadiya, Wd/o Ramadhin, Caste Gond, aged about 50 years, (b) Swarup Singh, S/o Ramadhin, aged about 38 years, (c) Sahadev, S/o Ramadhin, aged about 36 years, 3. Ramcharan, S/o Thakur Ram, Caste Gond, R/o Village Madai, 4.(a) Dead (Deleted) (Devendra Kumar S/o Tirath Prasad Gond) a (i) Shanti Bai, Wd/o Devendra Kumar a (ii) Ku. Ishwari, D/o Late Devendra Kumar, aged about 10 years, Minor through Mother Shanti Bai, Wd/o Devendra Kumar, respondent No.4 (a) Both R/o Village Madai, Tahsil Marvahi, Distt. Bilaspur. (b) Basant Kumar, S/o Tirath Prasad Gond, aged about 35 years, (c) Vijay Kumar, S/o Tirath Prasad Gond, aged about 30 years, (d) (e) 5(a) (b) (c) (d) Ku. Shushila, D/o Tirath Prasad Gond, aged about 20 years, Ku. Sumitra, D/o Tirath Prasad Gond, aged about 18 years, All are R/o • Village Madai, Tahsil Marwahi, Distt. Bilaspur (C.G.) Leela Bai, Wd/o Badri Prasad, aged about 44 years, Ramesh Kumar, S/o Badri Prasad, aged about 28 years, Mukesh Kumar, S/o aged about 25 years, Badri Prasad, 6(a) (b) 7(a) (b) 8. 9. Jalesh Kumar, S/o Badri Prasad, aged about 19 years, All Caste Gond, R/o Village Madai, Tahsil Pendra Road. Jhabaharin, Wd/o Dhyan Singh, aged about 55 years, Caste Gond, R/o Village Jhabar, Tahsil Pendra, Distt. Bilaspur (C.G.) Phool Singh, S/o Late Dhyan Singh, aged about 32 years, Caste Gond, R/Q Village Jhabar, Tahsil Pendra, Distt. Bilaspur (C.G.) Dead (Deleted) Sampatiya Bai, Wd/o Maan Singh, Buddhu Singh, S/o Maan Singh Gond, aged about 45 years, R/o Village Sakola, Tahsil Pendra Road, Distt. Bilaspur (C.G.) Dead - Delected (Bisahani Bai) State of M.P. (Present State of Chhattisgarh), Through Collector, Bilaspur (C.G.) Present: Mr. Dhirendra Mishra, counsel for the appellant. Mr. Manoj Paranjpe, counsel for respondents No.l to 7 (b). Mr. Sushil Dubey, Govt. Advocate for the State/respondent No.9. {Second appeals under Section 100 ofthe Code of Civil Procedure, 1908} Sinale Bench: Hon'ble Mr. T.P. Sharma. 3 ORAL JUDGMENT (4-8-2009) ^gince both the above appeals are arising out of the same judgment & decree dated 22-1-2008 passed by the Additional District Judge (F.T.C.), Pendra Road in Civil Appeal No.l2A/2003, they are being disposed of by this common judgment. 2. By S.A.No.168/2008 the appellants/plaintiffs have challenged the finding of the lower appellate Court relating to necessity of claimin respect of the sale deed executed by Hanuman Prasad in favour of respondent No.l Deena. 3. By S.A.No.174/2008 appellant Dina Gond has challenged the finding of thelower appellate Court relating to the need of proving the will alleged to have been executed by deceased defendant Bisahni Bai in favour of appellant Dina Gond. 4. Brieffactsleading to filing ofthese appeals are that the property left by Hanuman Prasad has been claimed by the plaintiffson the basis of succession. First part of property of Hanuman Prasad has been claimed by Dina onthe basis ofsale deed andsecond part on the basis of will executed by his legally wedded wife deceased defendant Bisahni Bai. After affording opportunity of hearing to the parties, learned trial Court has dismissed the suit, but learned lower appellate Court has partly allowed the suit to the extent of property effected by the will and has declared that in absence of any proof of execution of will the plaintiffs are entitled for part of the property effected by others, but has dismissed the appeal which is effected by the alleged sale deed on the ground that the plaintiffs have not claimed anyrelief relating to execution ofsuch sale deed. 5. I have heard learned counsel for the parties, perused the judgment & decree impugned as also the judgment & decree of the trial Court and record of the Courts below. 6. Mr. Manoj Paranjpe, learned counsel appearing on behalf of the plaintiffs, vehemently argued that although the plaintiffs have not claimed any relief relating to sale deed, but at least defendant Dina is under obligation to prove the factum of execution of sale deed and in absence of such proof, denial of claim of the plaintiffs is not sustainable. 7.0n the other hand, Mr. Dhirendra Mishra, learned counselappearing on behalf of defendant Dina, argued that the defendant has pleaded 1-HB s^- /rii "^E!F; Soma in his written statement about the exectrtWh of will, therefore, no further proof was required, even otherwise, he has adduced the evidence of Suddhu Singh (DW-2) who has proved the execution of will. 8. Pleadings & evidence adduced on behalf of the parties reveal that defendant Dina has claimed title and possession on the basis of allegedsale deed executed by Hanuman Prasad, but legal heirs of Hanuman Prasad have not pleaded and claimed any claim relating to such sale deed, even after filing of defence/written statement on behalf of deceased defendant Bisahni Bai. Defendant Dina has adduced evidence in support of his claim and he himself has deposed that he came into possession on the basis of sale deed in question, his name has been mutatedand finds place in revenue record. It is alsoadmitted that he has paid Rs.10,000/- to Hanuman Prasad. In absence of any specific claim in pleading on behalf of defendant Dina such evidence and pleading are sufficient to prove his part. 9. As regards the question of execution of will, the plaintiffs have challenged ownership of deceased Bisahni Bai as a heir of deceased Hanuman Prasad by filing the suit. During the pendency of civil suit, deceased Bisahni Bai died and defendant Dina has pleaded in his defence relating to execution of will deed. lO.Admittedly, defendant Dina has claimed title over the property effected by the alleged will on the basis of execution of will by Bisahni Bai. Burden was on the defendant to prove consdous execution of will by Bisahni Bai as heir of Hanuman Prasad. Defendant Dina hasnot adduced and produced any evidence to prove conscious execution of will by adducing witnesses orany other evidence. In absence to such proof, finding of lower appellate Court does not suffer from any illegality. I do not find any substantial question of law for decision of these appeals. ll.Consequently, both the appeals are liable to be dismissed and thereby hereby dismissed. No order as to costs. / T.P.Sharma Judge 9