•o ,'%''?-' ^ \ .'<^.'! 2;®;<21:::<:ftet:St:»^IN saa'' .;s:a.^SK.e.:&M ft :& -tl; <"*'(»•,i ff-}-»'i S8»i S9 ! ^ :s M^vs iEisASiS ^IIBS iiilSi W'SKft ifS!I^ '•"•M •l|i*te- , - ~~. HIGH COURT QF CHHATTISGARH AT BII..ASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra ^"•-- Jagan La! Satnami anbaiya La! and another Postfor 09-02-2010 Sd//- Prashant Kumar Mishra Judge HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashanf Kumar Mishra Second Appeal No.251 of 2008 versus Jagan Lal Satnami Kanhaiya Lai and another (^- Present: Shri J.R.Verma, counsel forthe appellant. Second Appeal under Section 1 00 of the ^.ode of Clvil Procedure (Passed on of*'February, 2010) The plaintiff/appellant herein had filed a sult for declaration of :it!e over suit lands on the basis of will dated 18-6-1998 (Ex. P-1) executed in his favour by Amrautinbai. One Samaru had two sons, namely, Hagru and Jhagru. Hagru had two daughters, namely, Amrautinbai, who died on 29-4-2000 and Kalmati. The plaintiff Jagan Lal is the son of Kalmati. Thus, Amrautinbai was the maternal aunt (Maua) of the plaintiff Jagan Lal. Jhagru had one son Balaram and defendant No.1 Kanhaiya Lal is the son of Balaram. There was already a partition between Hagru and Jhagru and after death of Jhagru, the suit lands were recorded in the name of Amrautinbai, who was residing with the plaintiff Jagan Lal and, therefore, she executed the wiil dated 18-6-1998 (Ex.P-1) bequeathing She suit property to the pl^intiff, however, on the basis of a forged agreement dated 1-3-1994, -^^ defendant No.1 got his name recordsd without knowledge of ,9'.^:' /& 1 2-- Amrautinbai and thereafter by a forged deed of relinquishment dated 21-7-1999, purported to have been executed by Amrautinbai, defendant No.1 got his name recorded exclusively in the revenue records, givlng rise to a cause of action for filing of the present suit by 2. Defendant No.1, in his written statement, while denying the plaint averments, asserted that the suit lands were the self-acquired property of Amrautinbai and the said Amrautinbai was pleased with the care taken of her by defendant No.1 and accorded consent to enter his name in the revenue records. Amrautinbai was annoyed with the plaintiff and, therefore, executed a deed of relinquishment in favour of defendant No.1 and made him the absolute owner ofthe suit property and since thereafter defendant No.1 is in possession of the suit 3. The iearned trial Court, on the basis of evidence on record, recorded a finding that the suit property is the self-acquired property of Amrautinbai, which she had received on account of exchange of iand v/ith one Atmaram. The trial Court considered the effect of Section 14 of the Hlndu Succession Act, 1956 to reach to the conclusion that property heid by a woman in the family is her absolute property. The trial Court recorded that though the will dated 18-6-1998 (Ex.P-1) has been exhibited but neither its attesting witnesses nor the scriber of the will has been examined by the plaintiff, therefore, the wiil has not been proved as required under Section 68 ofthe indian Evidence Act, 1872 and Section 63 ofthe Indian Succession Act, 1925. It was also found that t.he deed of relinquishment dated 21-7-1999 is not proved, "^ -^ ff >—-""^ ^ ^y- .f^ •.»..-,...,/.;-' '^' however, since the plaintiff had filed the suit on the basis of the will dated 18-6-1998 (Ex.P-1 ) and the same has not been proved, the trial Court dismissed the suit. 4. The first appellate Court also dismissed the appeal preferred by the present appeilant after concurring with the findings recorded and judgment passed by fhe trial Court. The first appellate Court also rejected the plaintiffs application under Order 41 Rules 27 and 28 of {he Code of Civi! Procedure to produce additional evidence. !t is the finding of the first appeliate Court also that the suit lands were the self- acquired property of Amrautinbai and the will Ex.P-1 is not proved. 5. Having perused the pleadings of the parties and the evidence, this Court finds that the findings recorded by the Courts below are not perverse. Since the entire claim of the plaintiff was based on the will Ex. P-1, which has not been proved, the Courts below have rightly dismi^ed the plaintiffs suit. 6. There being no substantial question of law arising in this appeal for determination, the second appeal fails and is hereby dismissed af the admission stage. Sd//- Prashant Kumar Mishra Judge Som'