Pratap Bhan Rai vs Chandra Bhan Rai
2023 Latest Caselaw 16554 MP

                                  1

          IN THE HIGH COURT OF MADHYA PRADESH
                       AT JABALPUR
                              BEFORE
           HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                     ON THE 7th OF OCTOBER, 2023

                   SECOND APPEAL No.1733 of 2023

       Between:-
       PRATAP BHAN RAI S/O LATE SHRI
       RAGHUNATH PRASAD RAI, AGED ABOUT 84
       YEARS, OCCUPATION: AGRICULTURIST R/O
       VILLAGE        SILOUDI       TEHSIL
       DHEEMARKHEDA       PRESEMTLY     R/O
       CHANDAK CHOUK MALIK COMPLEX RAI
       BUILDCON   KATNI    DISTRICT  KATNI
       (MADHYA PRADESH)

                                                   .....APPELLANT
       (SHRI MUKESH KUMAR AGRAWAL, ADVOCATE)


       AND

1.     CHANDRA BHAN RAI S/O LATE SHRI
       RAGHUNATH PRAASAD RAI, AGED ABOUT 86
       YEARS, OCCUPATION: AGRICULTURIST R/O
       RAI BHAWAN 245(A) KATRA GANDHI CHOUK
       LALBHADUR SHASTRI WARD ADHARTAL
       JABALPUR (MADHYA PRADESH)

2.     UDAY BHAN RAI (DECEASED) THROUGH HIS
       LEGAL HEIRS

(2A)  SMT. KISHORIBAI RAI W/O LATE SHRI UDAY
      BHAN RAI, AGED ABOUT 75 YEARS,
      OCCUPATION:        HOUSE        MAKER
      AGRICULTURIST R/O LIG-65 SHIV NAGAR
      COLONY BESIDE DHANI MARRIAGE HALL
      DEENDAYAL UPADHAYAYA WARD DAMOH
      ROAD JABALPUR DISTRICT JABALPUR
      (MADHYA PRADESH)
(2B). SHARAD RAI S/O LATE SHRI UDAY BHAN RAI,
      AGED ABOUT 54 YEARS, OCCUPATION:
      AGRICULTURIST R/O LIG-65 SHIV NAGAR
                                     2

      COLONY BESIDE DHANI MARRIAGE HALL
      DEENDAYAL UPADHAYAYA WARD DAMOH
      ROAD JABALPUR DISTRICT JABALPUR
      (MADHYA PRADESH)

(2C). SANTOSH RAI S/O LATE SHRI UDAY BHAN
      RAI, AGED ABOUT 56 YEARS, OCCUPATION:
      AGRICULTURIST R/O LIG-65 SHIV NAGAR
      COLONY BESIDE DHANI MARRIAGE HALL
      DEENDAYAL UPADHAYAYA WARD DAMOH
      ROAD JABALPUR DISTRICT JABALPUR
      (MADHYA PRADESH)

(2D). UMARANI RAI D/O LATE SHRI UDAY BHAN
      RAI, AGED ABOUT 52 YEARS, OCCUPATION:
      AGRICULTURIST R/O LIG-65 SHIV NAGAR
      COLONY BESIDE DHANI MARRIAGE HALL
      DEENDAYAL UPADHAYAYA WARD DAMOH
      ROAD JABALPUR DISTRICT JABALPUR
      (MADHYA PRADESH)

3.    STATE OF M.P. THROUGH COLLECTOR KATNI
      DISTRICT KATNI (MADHYA PRADESH)

                                                    .....RESPONDENTS

      (BY SHRI RAMJEE PATEL, PANEL LAWYER FOR
      RESPONDENT 3-STATE)


...................................................................................................................................................................

      This appeal coming on for orders/admission this day, Court passed
the following:
                                ORDER

This second appeal has been preferred by the appellant/defendant 1 challenging the judgment and decree dtd. 29.04.2023 passed by 3rd Additional Judge to the Court of 1st District Judge, Katni in Civil Appeal No.78/19 affirming the judgment and decree dtd. 03.07.2019 passed by Additional Judge to the Court of 1st Civil Judge Class-II, Katni in Civil Suit No. 67A/14 whereby respondent 1/plaintiff's suit for declaration of

title over his equal share, partition and separate possession in respect of land Khasra No. 37/1 & 407 has been decreed.

2. Learned counsel for the appellant submits that undisputedly the land in question area 1.68 acre belonged to mother of the plaintiff and defendants namely Binni Bai who received it in the partition affected in the year 1965 in the lifetime of father Raghunath Prasad Rai, which was given by mother Binni Bai to the appellant/defendant 1 Pratapbhan Rai by executing Will on 11.06.1982 (unregistered). Learned counsel submits that the Will dtd. 11.06.1982 was produced in the previous Civil Suit No. 47A/2008 filed by defendant 2 Udaybhan Rai and in that civil suit the appellant proved the Will by examination of the attesting witness Dukhilal and scribe of Will Murtaza and by accepting the Will, the civil suit filed by Udaybhan Rai was dismissed, which was in respect of different property and no finding regarding proof of Will was recorded. Learned counsel submits that the attesting witness Dukhilal had died on 12.07.2010, therefore, he could not be examined in the suit and the defendant was not in contact of other attesting witness Umshankar Tiwari, therefore, he also could not be examined and the learned Courts for want of examination of attesting witnesses, have held that the Will (Ex.D/6) executed by Binni Bai in favour of the appellant Pratapbhan Rai, is not proved.

3. Learned counsel further submits that on the basis of Will the name of appellant was already mutated in the year 1995 and the plaintiff despite knowledge of the aforesaid, did not file the suit for declaration of title within a period of three years. As such the suit is also barred by limitation and learned Courts below have not considered this aspect of matter. Learned counsel further submits that an application under Order 41 Rule 27 CPC was filed for adducing additional evidence with the intention to

prove the Will by examination of the attesting witnesses, which has also been dismissed wrongly by first appellate Court. With the aforesaid submissions, he prays for admission of the second appeal.

4. Heard learned counsel for the appellant and perused the record.

5. Undisputedly, the land in question belonged to mother of the plaintiff and defendants 1-2 namely Binni Bai and the appellant/defendant 1 is claiming exclusive rights in the suit property on the basis of unregistered Will dtd. 11.06.1982 (Ex.D/6), original of which has not been produced, but certified copy of it has been placed on record. Admittedly, attesting witnesses of the Will Dukhilal and Umashankar Tiwari have not been examined. By way of application under Order 41 Rule 27 CPC filed before first appellate Court, it was pointed out that attesting witness Dukhilal and scribe of the Will Murtaza have died but still no explanation has been given in the application regarding Umashankar Tiwari.

6. Learned both the Courts below have held that for want of examination of attesting witnesses, the Will cannot be said to be proved. Perusal of the record shows that the appellant/defendant 1 has not even produced original Will before the Court and there is no sufficient explanation on record about non-examination of another witness Umashankar Tiwari, who would be presumed to be alive.

7. As such in the considered opinion of this Court, the findings recorded by learned Courts below regarding proof of the Will do not appear to be illegal or perverse.

8. So far as the question of limitation is concerned, the property in question admittedly belonged to mother Binni Bai and after her death on 31.05.1986, all the three sons are entitled to receive the property

according to their share. Mere mutation of the appellant/defendant 1 Pratapbhan Rai over the entire property does not confer any right on him and on the basis of mutation it cannot be said that the plaintiff's suit for declaration of share and partition is barred by limitation.

9. Resultantly, this Court does not find any substantial question of law involved in the present second appeal, hence in absence of any substantial question of law, this second appeal fails and is hereby dismissed.

10.. Pending application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE

Pallavi Digitally signed by KUMARI PALLAVI SINHA Date: 2023.10.09 11:16:17 +05'30'