MIGHCOURTOF CHHATnSGARH.BILASPUR Second ADReal No.298of2008 APPELLANTS: RESPONDENTS: Vishnu Das and another Versus Mehattar Das andothers th Post for Dronouncement Qfjydgment on 171" Julv, 2009 Sd/- T.P.Sharma Judge ^' (mT".- HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANTS/: (Defendant No.3) (Defendant No.4) RESPONDENTS/: (Plaintiff) (DefendantNo.1) (Defendant No.2) Second Appeal No.298 of 2008 1. Vishnu Das.aged about 52 years, S/c Mangan Das Panika; 2. Smt. Kanwli Bai, aged about42 years, W/o Budhram Panika; Both R/o Village Mudagaon, Tahsil Gariyaband, Distt. Raipur (C.G.) Versus 1. Mehattar Das, S/o Babu Das Panika, Kotwar, aged about 57 years, R/o Village Navapara, Tahsil Gariyaband, Distt. Raipur (C.G.) 2. Roop Singh, S/o Chamar Ram, Caste Kanwar, R/o Village Mudagaon, Tahsil Gariyaband, Distt. Raipur (C.G.) 3. The State of Chhattisgarh, Through the Collector, Raipur, Distt. Raipur (C.G.) {Second appeal underSection 100 of the Code of Civil Procedure, 1908} Present: Mr. M.K. Bhaduri, counsel forthe appellants. Miss Purnima Singh, counsel for respondent No.1. None present for respondent No.2. Mr. Sushil Dubey, Govt. Advocate for the State/respondent No.3. Sinale Bench: Hon'ble Mr. T.P. Sharma, J JUDGMENT (Deliveredonl 7th July, 2009) 1. This isthe second appeal challenging the judgment & decree dated 1-5- 2008 passed by the Additional District Judge, Gariyaband in Civil Appeal No.31-A/2007setting aside the judgment & decree dated 1-8-2007 passed by the Civil Judge Class-1, Gariyaband in Civil Suit No.40-A/ 2004, whereby learned Civil Judge Class-1 has dismissed the suit for possession of house and dedaration of will deed as null & void. 2. Judgment & decree are challenged on the ground of substantial question of law that whether the finding of the Court below is perverse relating to genuineness of the will executed by Budhiarain Bai, younger mother of , respondentNo.1. ^ 3. RespohdentNo.1 hasfiled the afbresaid suiton the ground thathe isthe sole legal heir of deceased Budhiarin Bai and has suceeeded the property in dispute,and the alleged will deed dated 30-1-2001 does not pass any title upon the appellants as the said will deed is shame & bogus. 4. Undisputed facts of the case revealthat Budhiarin Bai was the sole owner of the property. Respondent No.1 Mehattar Das isson of elder sister of deceased Budhiarin Bai. Ownership over the property is claimed by the appellants on the basis of will deed dated 30-1-2001. Both the parties have led evidence before the trial Court and the trial Court has arrived a finding that the will is not the genuine document. Finding ofthe trial Court is affirmed by the appellate Court. 5. Learned counsel for the appellants vehemently argued that the lower appellate Court has decreed the suit in favour of plaintiff Mehattar Das on the ground that he is legal heir of deceased Budhiarin Bai, though he has not proved that he is legal heir of deceased Budhiarin Bai. Learned counsel further argued that the alleged will deed Ex.D-1 is genuine and has been duly proved by Baliram (DW-2) who was present at the time of execution ofthewill. 6. On the other hand, learned counsel for respondent No.1 opposed the second appeal andsubmitted that the will has not been proved by the appellantsand in absence of such proof the appellants have no interest overthe property. 7. I have heard learnedcounsel for the parties and perused the impugned judgment & decree as also the record. 8. Crucial question for admission of this appeal is whether the appellants have proved the genuineness ofthe will. The appellants haveexamined Baliram (DW-2) who is one of the attesting witnesses of the will. Baliram (DW-2) has deposed that Budhiarin Bai has executed thewill which was drafted by Gunendra and he has signed over the will.the will was drafted at the instance and direction of Budhiarin Bai. In para 5 of his cross- examination, he has admitted that at the time of execution of will Budhiarin Bai was ill and her eyes wereweak. He has specifically deposed that Budhiarin Bai died after two months of execution of the will. He has further stated that he does no whether Budhiarin Bai has died after four days of the execution of will. In para 6 he has admitted that Budhiarin Bai was not talking 15-20 days prior to her deatl^—KsrtnliBai told him that she has served and serving for Budhiarin Bai, therefore, land should be given to her. Sarpanch has taken thumb impression of Budhiarin Bai over the document. 9. According to pleadings of the parties, the alleged will was executed on 31-1-2001 and Budhiarin Bai died on 4-2-2001 just after four days of its execution. Evidence of Baliram reveals that Budhiarin Bai was seriously ill,even she was not in a position to talk and her thumb impression has been taken by the Sarpanch. This suffices the genuineness and cautious execution ofwill in favour ofthe appellants. Ex.D-1 also reveals that land and area were written as blank relating to the present appellants. This is an unregistered will and burden to prove its cautious execution by Budhiarin Bai was on theappellants, but the appellants have not proved cautious execution of the will, rather they have disproved cautious execution ofwill by adducing the evidence of Baliram. 10.0nthe basis of the evidence of Baliram, the Court below has rightly decided the issue of genuineness ofthe will against the appellants. The Court below has not committed any illegality. In absence of will or any other document, the present appellants are not having any interest over the property. Therefore, 1 do not find any substantial question of law for decision ofthis second appeal. ll.Consequently, the appeal is liable to be dismissed and it is hereby dismissed. The appellants shall bear their own costs of this appealas also of the suit and also the costs of the respondents. Advocate fees as per schedule. Sd/- T.P.Sharma Judge Soma