Madhya Pradesh High Court
Banap Singh vs Smt. Mishra Bai on 9 February, 2024
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IN THE HIGH COURT OF MADHYA
PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 9 th OF FEBRUARY, 2024
SECOND APPEAL No. 446 of 2021
BETWEEN:-
1. BANAP SINGH S/O SHRI NANNULAL, AGED
ABOUT 45 YEARS, OCCUPATION:
AGRICULTURIST KHEDIPURA ICHHAWAR
TEH. ICHHAWAR DIST. SEHORE MP
(MADHYA PRADESH)
2. LAXMINARAYAN S/O SHRI NANNULAL,
AGED ABOUT 43 YEARS, OCCUPATION:
AGRICULTURIST KHDIPURA ICHHAWAR
TAH. (MADHYA PRADESH)
3. SHIVKANTA BAI W/O LATE SHRI BHAGWAT
SINGH, AGED ABOUT 45 YEARS,
OCCUPATION: AGRICULTURIST KHDIPURA
ICHHAWAR TAH. (MADHYA PRADESH)
4. BALRAM SINGH S/O LATE SHRI BHAGWAT
SINGH, AGED ABOUT 23 YEARS,
OCCUPATION: AGRICULTURIST KHDIPURA
ICHHAWAR TAH. (MADHYA PRADESH)
5. YOGESH SINGH S/O LATE SHRI BHAGWAT
SINGH, AGED ABOUT 23 YEARS,
OCCUPATION: AGRICULTURIST KHDIPURA
ICHHAWAR TAH. (MADHYA PRADESH)
.....APPELLANT
(BY SHRI DEVENDRA KUMAR TRIPATHI - ADVOCATE)
AND
1. SMT. MISHRI BAI W/O SHRI GHASIRAM
VERMA, AGED ABOUT 55 YEARS,
KHEDIPURA TEH. ICHHAWAR DIST. SEHORE
MP (MADHYA PRADESH)
Signature Not Verified
Signed by: DEVESH K
SHRIVASTAVA
Signing time: 2/16/2024
3:38:17 PM
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2. SUGAN BAI W/O SHANKAR LAL, AGED
ABOUT 45 YEARS, GRAM TEELAKHEDI TAH.
HUZUR (MADHYA PRADESH)
3. RAJKUNWAR BAI W/O MANOHAR SINGH,
AGED ABOUT 35 YEARS, NEELKHAND TAH.
NASRULLAGANJ (MADHYA PRADESH)
4. SARITA D/O BHAGWAT SINGH, AGED ABOUT
30 YEARS, GRAM BHAUKHEDI TAH.
ICHHAWAR (MADHYA PRADESH)
5. JYOTI D/O BHAGWAT SINGH GRAM KULLAS
TAH. AND DISTT. (MADHYA PRADESH)
6. STATE OF M.P. THR. COLLECTOR DISTT.
SEHORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI NARESH KUMAR SHARMA - ADVOCATE)
This appeal coming on for admission this day, th e court passed
the following:
ORDER
This second appeal under Section 100 of the C.P.C has been
preferred challenging the judgment dated 30.08.2018 by the IInd Additional
Judge to the Court of Ist Additional District Judge, Sehore in RCA No.9-
A/2-18 arising out of the judgment and decree dated 30.06.2017 in Civil
Suit No.9-A/13 by the Additional Judge to the Court of I s t Civil Judge
Class-I, Sehore.
2. The facts in brief are that Munnalal was the father of complainant
respondent No.1 Mishribai and Sarjubai whose legal representatives were
mentioned in plaint as 1A-Suganbai and 1B-Rajkunwarbai. Mishribai and
Sarjubai were married. Munnalal was the owner of 14.58 acres of land at
Seharyar Nagar and 9.99 acres of land at Chandrapura. At the time of
death of Munnalal in the year 1992, 7 acres of land of Sehyarnagar and
6.10 acres of land at Chandrapura was in the ownership of Munnalal and
after the death of Munnalal, the land were mutated in the name of Seetabai.
Plaintiff and defendant No.1. are co-sharer.
3. In the year 2018 a partition was effected, but name of plaintiff
was not mutated and after the death of Seetabai, the land was mutated in
the name of Mishribai, so plaintiff filed a Civil suit on 28.04.2011. When
defendant No.1 denied plaintiff from her share and also do not paid
compensation, plaintiff also came to know that a forged will dated
10.05.2009 has been created in favour of defendant No.2 and 4. A suit for
declaration of title on half share of disputed land and declaration of will
dated 10.05.2009 as null and void, partition with metes and bounds and
permanent injunction was filed.
4. Defendants contested the case and trial court framed nine issues
and recorded the evidence of Mishribai as PW/1, Ghasiram as PW/2 and
admitted Exhibit P/1 to P/10. The defendants examined Banap Singh
DW/1, Tejpal DW/2, Moti Singh PW/3, Mahesh PW/4, Mukesh Chandra
PW/5 and admitted the documents Exhibit D/1 to D/11. The trial Court
declared the will Ex.D/1 suspicious and passed a decree in favour of
Mishribai for half share of the land situated at village Seharyar, Tehsil
Icchawar, Distict Sehore and village Chandrapura.
5. The first Appellate Court affirmed the judgment and decree of the
trial Court and assailing the concurrent finding of both the Courts below,
this Second appeal has been preferred proposing the following substantial
questions of law :-
a) Whether the trial court as well the lower appellate court
has rightly allowed the claim of plaintiff?
b) Whether, the learned trial court has committed error in
holding that after death of Seeta Bai the plaintiff and
defendant no.1 having ½ and ½ share over the property,
whereas, during lifetime Seeta Bai was executed will in
favor of defendant no.2 and 47?
c) Whether, the learned both the court below committed
error by holding that the will executed by the Seeta Bai is
declared as forge, whereas, that has been proved by the
witnesses as per the law?
d) Whether both the court below erred in holding that the
plaintiff having right over 1½ over the land in questioned,
whereas, as per averments of plaintiff herself she having 1/3
share over the land in question?
6. The focal point of controversy is revolved around the will
(Ex.D/1). Chandan Singh Verma and Mahesh are the attesting witness
mentioned in the will (Ex.D/1). The trail Court has meticulously mentioned
suspicious circumstances in para 20 and 21 of the judgment and also
examined the testimony of attesting witness Mahesh DW/4 and Notary
Shri Pragat (DW/5). The trial Court examined each circumstances in para
25, 26 and 27 and also concluded the will as suspicious. The first
Appellate Court also re-appreciated whole evidence and concluded in para
32 of the judgment that will (Ex.D/1) is not genuine, it is forged.
7. These findings are not the result of misinterpreting the evidence
or overlooking any evidence. So these findings of fact do not constitute
substantial question of law. The arguments of appellant is sans merit that
to the extent of the share of Seetabai the will may be enforced. Hence, no
substantial question arises in the appeal.
8. Accordingly, it is dismissed.
(GAJENDRA SINGH)
JUDGE
DevS
