Madhya Pradesh High Court
Mayank vs Mukul on 3 February, 2023
Author: Dwarka Dhish Bansal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 3rd OF FEBRUARY, 2023
SECOND APPEAL NO. 966 OF 2019
BETWEEN:-
MAYANK S/O LATE SHRI SUNDERLAL
SIKKEWAL, AGED 65 YEARS, OCCUPATION:
PRIVATE BUSINESS, R/O BETUL BAZAR,
TAHSIL AND DISTRICT BETUL (M.P.)
.....APPELLANT
(BY SHRI A.H. HUSSAIN - ADVOCATE)
AND
1. MUKUL S/O SUNDERLAL SIKKAWALA
2. NAGENDRA S/O LATE SHRI SUNDARLAL
SIKKEVAL
3. BHUPESH S/O LATE SHRI SUNDARLAL
SIKKEVAL
4. ADTIYA S/O LATE SHRI SUNDARLAL
SIKKEVAL
5. SMT. SHANTIDEVI W/O LATE SHRI
SUNDARLAL SIKKEVAL
ALL R/O SAKIN BETUL BAZAR, TAHSIL AND
DISTRICT BETUL
6. STATE OF M.P. THROUGH COLLECTOR
DISTT. BETUL (MADHYA PRADESH)
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 2/7/2023
7:17:02 PM
- 2 -
7. BHAGVAN SHIV MANDIR MILANPUR
THROUGH VADMITRA SHRI K.K
CHADOKAR ADVOCATE R/O ROAD NO.3,
CIVIL COURT BETUL, TAHSIL AND
DISTRICT BETUL (M.P.)
.....RESPONDENTS
(BY SHRI RAJNISH PANDEY - ADVOCATE FOR RESPONDENTS1-3
AND MISS KAMLESH TAMRAKAR - PANEL LAWYER FOR THE
STATE/RESPONDENT-6 )
This appeal coming on for admission this day, the Court
passed the following.
ORDER
This second appeal has been preferred by the defendant 1
challenging the judgment and decree dated 23.01.2019 passed by 1st
Additional District Judge, Betul in RCA no.7-A/13 affirming the
judgment and decree dated 18.02.2013 passed by Additional Judge to the
Court of 1st Civil Judge Class-II, Betul, in civil suit no.25-A/11, whereby
suit filed by respondents 1-3 for declaration of title and permanent
injunction and for declaring the unregistered Will dated 22.02.2001,
allegedly executed by father-Sunderlal Sikkewal in favour of defendant 1,
null and void and not binding on the plaintiffs, has been decreed.
2. The plaintiffs instituted the suit for declaration of title and
permanent injunction with the allegations that capacity of their father
Sunderlal was just a trustee and he was not competent to execute any Will
as against the previous judgment and decree passed by Civil Judge Class-
I, Betul and prayed that the defendants be restrained from making
interference in the plaintiffs' management of the temple and agriculture
operations on the land appurtenant to the temple, in which the defendants
are interfering in the garb of alleged Will in favour of the defendant 1.
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 2/7/2023
7:17:02 PM
- 3 -
3. The defendant 1 appeared and filed written statement denying the
plaint allegations and contended that father Sunderlal executed Will dated
22.02.2001 in favour of defendant 1 and on that basis he is sole surviving
"Sarvarakar" and is entitled to manage the temple as well as land
belonging to the temple. With these contentions, the suit was prayed to be
dismissed.
4. The defendants 2-3 and 5 also filed written statement and
supported the case of defendant 1 and prayed for dismissal of the suit.
5. On the basis of pleadings of the parties learned trial Court framed
issues and recorded evidence of the parties and after due consideration of
the same, decreed the suit declaring that the Will dated 22.2.2001 is null
and void and the defendants were restrained from making any
interference in plaintiffs' management of the temple and its land.
6. Upon filing the appeal by defendant 1 Mayank, learned first
appellate Court has also affirmed the judgment and decree of trial Court
by dismissing the civil appeal vide impugned judgment and decree dated
23.01.2019.
7. Learned counsel for the appellant/defendant 1 submits that
although the original Will has not been filed by defendant 1/appellant, but
as has been observed by learned trial Court in para 12, there has been
tradition in the family of the parties, in respect of appointment of
"Sarvarakar" by way of Will, therefore, in view of admissions made by
the plaintiffs regarding execution of Will in favour of defendant 1, the
Will should have been accepted to have been executed by father
Sunderlal Sikkewal and the learned Courts below have erred in holding
contrary. With these submissions, he prays for admission of the second
appeal.
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 2/7/2023
7:17:02 PM
- 4 -
8. Learned counsel for the respondents 1-3/plaintiffs supports the
impugned judgment and decree passed by learned Courts below and prays
for dismissal of the appeal.
9. Heard learned counsel for the parties and perused the record.
10. Undisputedly, the plaintiffs and defendants 1-3 are class one
successors of late Sunderlal who was "Sarvarakar" of the temple in
question and its land. It is also clear that both the parties are claiming
rights through father and Sarvarakar Sunderlal. In the present case, the
defendant 1 is claiming exclusive rights of "Sarvarakar" over the temple
and its land/property on the basis of alleged Will dated 22.02.2001 which
has not been placed on record and the defendant 1 has not even tried to
prove execution and attestation of the Will in accordance with Section 63
of the Indian Succession Act and Section 68 of the Evidence Act.
11. As such, even in presence of certain findings/observations recorded
by learned trial Court and first appellate Court in respect of alleged Will
and tradition of appointment of Sarvarakar by way of execution of Will in
the family of the parties, no relief could be granted in favour of defendant
1. As such, learned Courts below have not committed any illegality in
decreeing the suit.
12. Resultantly, there being no involvement of substantial question of
law in the second appeal, the same deserves to be and is hereby
dismissed in limine under Order 41 rule 11 CPC. However, no order as to
the costs. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
pb
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 2/7/2023
7:17:02 PM
