Dhanmat Bai vs Mannilal Rajwade
2022 Latest Caselaw 5131 Chatt

                                      1

                                                                        NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR

                      Second Appeal No.335 of 2021

   1. Dhanmat Bai D/o Late Shubhulal Rajwar, Aged About 49 Years, R/o
       Village Ghughra (Mahuapara) P. O. Kathgori, Tehsil Sonhat, District
       Korea Chhattisgarh

   2. Rajkumar Rajwade S/o Late Shukulram Rajwade, Aged About 41
       Years, R/o Village Ghughra (Mahuapara) P. O. Kathgori, Tehsil
       Sonhat, District Korea Chhattisgarh

   3. Pyarelal Rajwade S/o Late Shukulram Rajwade, Aged About 37
       Years, R/o Village Ghughra (Mahuapara) P. O. Kathgori, Tehsil
       Sonhat, District Korea Chhattisgarh

                                                            ---- Appellants

                                   Versus

   1. Mannilal Rajwade S/o Amar Sai, Aged About 52 Years, R/o Village
       Ghughra (Mahuapara) P. O. Kathgori, Tehsil Sonhat, District Korea
       Chhattisgarh

   2. State Of Chhattisgarh Through The Collector, Korea Baikunthpur,
       District Korea, Chhattisgarh

   3. Pappu Karmakar S/o Dildar Karmakar, Aged About 27 Years, R/o
       Ward No. 7, Roop Nagar, Charcha (Shivpur-Charcha Municipal Area)
       Post Charcha, Tehsil Baikunthpur, District Korea, Chhattisgarh

   4. Ramesh Kumar Agrawal S/o Baijnath Agrawal, Aged About 61 Years
       R/o Baikunthpur, Main Road, Near Punjab National Bank, Tehsil
       Baikunthpur, District Korea, Chhattisgarh

                                                          ---- Respondents

For Petitioner           :      Mr. Shobhit Koshta, Advocate
For State                :      Mr. Avinash K. Mishra, Govt. Advocate


                   Hon'ble Shri Justice P. Sam Koshy
                             Judgement On Board
12.08.2022


1. Present is a plaintiffs' second appeal.

2. The challenge in the present second appeal is to the judgment

passed by the Civil Judge, Class-II, Baikunthpur (Koriya) in Civil Suit

No. 56A/2019 decided on 27.11.2020 which stood further affirmed by

the First Appellate Court i.e. the Additional District Judge (FTC),

Koriya. in Civil Appeal No.01A/21 decided on 05.10.2021

3. The appellant/plaintiffs had filed a suit for declaration of title,

confirmation of possession and permanent injunction and had also

sought for declaration of the Will dated 27.10.2005 to be null and

void. The property in dispute originally belonged to one Hirasai. After

death of Hirasai the property fell upon his wife Phooleshwari Bai who

was also known as Phoolesiya Bai. Hirasai and Phooleshwari Bai

were issueless. After death of Hirasai, defendant no.1 was the

person who was residing with Phooleshwari Bai and was taking care

of her. It was the defendant no.1 who was also taking care of the

agricultural properties of Phooleshwari Bai and did the entire

cultivation in addition to taking care of Phooleshwari Bai.

4. It is said that when Phooleshwari Bai became old, she intended to

execute a will in respect of the property which belonged to her in

favour of defendant no.1 Manilal Rajwade. Thereafter, a will was got

executed on 27.10.2005 and the same was also got registered in the

office of the Registrar. Down the line, after some period of time,

Phooleshwari Bai also expired. It is the defendant no.1 who on the

basis of the Will came in possession of the said property. It is also

said that defendant no.1 subsequently has further sold some portion

of the said property to defendant Nos. 3 & 4.

5. Meanwhile, after the death of Phooleshwari Bai, the plaintiffs had

approached the Tahsildar for mutation of the property which stood in

the name of Phooleshwari Bai in favour of plaintiffs claiming them to

be the children of the sister of Phooleshwari Bai. However, based

upon the Will dated 27.10.2005 the mutation had already got done in

the name of defendant no.1 and the Tahsildar rejected the application

of the plaintiffs. Subsequently, the plaintiffs filed the Civil Suit seeking

for declaration of title, possession and injunction and also for

declaration of the will dated 27.10.2005 to be null and void.

6. The Trial Court taking into consideration the evidence which has

come on record reached to the conclusion that the plaintiffs have not

been able to establish their case before the Court below by leading

strong and cogent evidence to declare the Will null and void and also

for declaration of title and possession. The said finding has also been

affirmed by the First Appellate Court wherein also the First Appellate

Court took the view that since it was the plaintiffs who were pleading

that the will dated 27.10.2005 was forged and fabricated Will,

obtained by playing fraud, the burden and onus was upon the

plaintiffs to establish the said fact. In the absence of any strong &

cogent evidence the First Appellate Court also affirming the judgment

and decree of the Trial Court rejected the first appeal which has led to

the filing of the present second appeal.

7. Learned counsel for appellants submits that the two Courts below

have not given a specific finding as regards the allegation that the

plaintiffs had raised in respect of the suspicious circumstances and

the manner in which the will had got executed. The contention of the

appellants is that the two Courts below have not taken into

consideration the fact that upon the appellants making an allegation

that the will is one which was executed by playing fraud and that there

were suspicious circumstances then prevailing, the onus thereafter

would have shifted upon defendant no.1 to establish that the will has

been properly executed.

8. Both these contentions which the appellants have raised in the instant

second appeal would clearly indicate that the said contentions of the

appellants are all one which can be established by leading cogent,

strong and substantial evidence. Except for the oral contention that

the appellants had raised before the Trial Court, there does not seem

to be any strong material made available in the course of evidence

nor was there anything substantial which could be extracted from the

cross-examination of the defendant witnesses to suspect the

execution of the will or for declaring it to be null and void.

9. Perusal of the records particularly the evidence which has been led

by the plaintiffs would give a clear indication that it stands established

that after Phooleshwari Bai's husband Hirasai had died and since they

were issueless, it was the defendant no.1 who was residing with

Phooleshwari Bai and was taking care of her. Defendant no.1 was

also taking care of the cultivation of the land owned by Phooleshwri

Bai. From the evidence it has also been established that the

defendant no.1 was staying with Phooleshwari Bai for a considerable

long period of time and it was he alone who was taking care of

Phooleshwari Bai and was also the caretaker to the properties of

Phooleshwari Bai.

10. Under the circumstances, if upon Phooleshwari Bai getting old

she was accompanied by defendant no.1 at the time when the will

was being executed, the presumption cannot be drawn that the

defendant no.1 had played an active participation in the execution of

the will. It is a natural conduct that the defendant no.1 who was

residing with Phooleshwari Bai for a considerable long period of time

was also accompanying her at the time of execution of the will.

11. In addition to the aforesaid facts, witness DW-2 Santlal who

was one of the attesting witness to the said Will and had entered

appearance before the Trial Court has accepted the entire execution

of the Will by Phooleshwari Bai in favour of defendant no.1. There is

no strong material extracted from the cross-examination of the said

witnesses to disbelieve his statement or to reach to a conclusion that

he too was an interested witness to the entire proceedings and that

he had made the statement before the Court below for any

extraneous reasons. Moreover, all these contentions which the

appellants have raised in the present appeal are all findings of fact

based upon the evidence which has come on record. The contentions

which the appellants have raised for drawing a presumption contrary

to the evidence on record cannot be construed to be a substantial

question of law to be framed for admitting the appeal.

12. For the aforesaid reasons, this Court does not find any

substantial question of law involved in the present appeal. The

findings of the two Courts below being purely findings of fact, the

second appeal fails and is accordingly dismissed.

Sd/-

(P. Sam Koshy) Judge Khatai