Kallu vs Santosh Kumar @ Santu
2024 Latest Caselaw 5444 MP

Madhya Pradesh High Court

Kallu vs Santosh Kumar @ Santu on 22 February, 2024

Author: Avanindra Kumar Singh

Bench: Avanindra Kumar Singh

                                                         1
                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                    BEFORE
                                 HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
                                            ON THE 22 nd OF FEBRUARY, 2024
                                             SECOND APPEAL No. 646 of 2018

                           BETWEEN:-
                           1.    KALLU S/O SALLU BURMAN, SINCE DECEASED
                                 THROUGH LEGAL HEIRS.
                                 JAYANTI BURMAN, AGED ABOUT 28 YEARS, W/O
                                 MUKESH BURMAN, D/O KALLU BURMAN, R/O
                                 VILALGE KACHPURA, TAHSIL SIHORA, DISTRICT
                                 JABALPUR (MADHYA PRADESH)

                           2.    LADLI BAI W/O KALLU BURMAN, AGED ABOUT 40
                                 YE A R S , R/O WARD NO.10, NEAR HARDAUL
                                 MANDIR, BRAHMANPURA, GAURAIYA MOHALLA
                                 SIHORA, DISTRICT SIHORA (MADHYA PRADESH)

                           3.    JITENDRA S/O KALLU BURMAN, AGED ABOUT 27
                                 YE A R S , R/O WARD NO.10, NEAR HARDAUL
                                 MANDIR, BRAHMANPURA, GAURAIYA MOHALLA
                                 SIHORA (MADHYA PRADESH)

                                                                                  .....APPELLANT
                           (BY SHRI R.P.KHARE - ADVOCATE)

                           AND
                           1.    SANTOSH KUMAR @ SANTU S/O NARAYAN
                                 PRASAD BURMAN, AGED ABOUT 35 YEARS, R/O
                                 UMARDHA (BACHAIYA), TEHSIL MAJHOLI, AT
                                 PRESENT WARD NO. 10, NEAR HARDAUL,
                                 MANDIR,     BRAHMANPURA,      GAURAIYA
                                 MOHALLA, SIHORA, TEHSIL SIHORA DIST.
                                 JABALPUR (MADHYA PRADESH)

                           2.    STATE OF MADHYA PRADESH            THR. THE
                                 C O L L E C T O R DISTT-JABALPUR     (MADHYA
                                 PRADESH)

                                                                                .....RESPONDENTS
                           (RESPONDENT NO.1 BY SHRI RUPESH SINGH - ADVOCATE )
                           (RESPONDENT NO.2 BY SHRI TEEKARAM KURMI - PANEL LAWYER)

Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 22-02-2024
20:22:27
                                                                    2
                                 Reserved on : 11.1.2024
                                 Pronounced on: 22.2.2024
                                 -----------------------------------------------------------------------------------
                                 This appeal having been heard and reserved for judgment, coming on
                           for pronouncement this day, JUSTICE AVANINDRA KUMAR SINGH
                           passed the following:-
                                                                  JUDGMENT

This second appeal has been filed by the appellants/plaintiffs against impugned judgment and decree dated 06.12.2017 passed by Second Additional District Judge, Sihora in Civil Appeal No.40-A/2017 whereby the judgment and

decree of the trial Court dated 07.12.2013 passed in Civil Suit No.22-A/2012 dismissing the suit of the appellants has been affirmed.

2. The original plaintiff- Kallu s/o Sallu had filed a civil suit being C.S.No.22-A/2012 for declaration, permanent injunction, possession and compensation against the respondents/defendants regarding suit property which was Willed by deceased-Chaity Bai through a registered will dated 08.4.2002 (Exhibit-D/1) to the son of her sister's daughter, namely, Santosh Kumar (respondent No.1). The learned trial Court dismissed the suit of the plaintiffs. The learned First Appellate Court also affirmed the decision of the trial Court and dismissed the appeal preferred by plaintiff. Being dissatisfied with the judgment and decree passed by the trial Court and first appelalte Court this second appeal has been filed by the appellants/plaintiffs. During pendency of appeal plaintiff-Kallu expired and he is represented by his legal heirs.

3. This second appeal has been filed on the ground that as per law Will is not proved. The documents in support of the property, which was willed, have not been produced. Hence, appellants prayed for setting aside of

impugned judgment and decree and for decreeing their suit.

4. Heard learned counsel for the appellant and perused the record. It seems that property came into share of uncle of appellants, namely, Mattulal who expired issueless. After the death of Mattulal his wife, namely, Chaity Bai willed the suit property to respondent No.1-Santosh Kumar by registered Will (Exhibit-D/1). Said Santosh is son of Meera Bai who is daughter of Kallu Bai whereas Kallu Bai was sister of Chaity Bai.

5. Kallu Barma (PW.1) has submitted that he is totally illiterate. Father-Sallu and uncle-Matto lived separately and after death of Mattolal his wife-Chaity Bai lived in the house of Mattolal. He submitted that in Will (Exhibit-D/1) there is photograph of Chaity Bai and Santosh Barman. In paragraph 24 he has deposed that it is wrong to say that he is not in possession of house of Chaity Bai.

6. PW.2 (Jitendra) in paragraph 14 of his cross-examination has submited that presently Santosh is living in the hosue of Chaity Bai. In paragraph 15 this witness intially submitted that Chaity and Mattolal were living separately, then he submitted that they were living together. The evidence of PW.3 (Ladli Bai) wife of Plaintiff-Kallu Barman is on the same line, whereas Jitendra Barman is son of plaintiff.

7. PW.4-Prakash s/o Vidyanand Dubey in paragraph 13 of his

cross-examination has deposed that Santosh is living in the house of Chaity Bai. In paragraph 14 this independent witness has deposed that he has not said that Will by Chaity Bai is forged or that Santosh has encroached upon the house of Chaity Bai.

8. PW.5-Dukhiram in paragraph 12 of cross-examination has stated that house of Kallu and Chaity Bai are separate. In paragraph 14 he deposed

that he has not stated on affidavit that Santosh has forcibly occupied the house of Chaity Bai.

9. Santosh (DW.1) has produced Will which is in his favour and in cross-examination nothing of substance has come on the basis of which it can be said that Will is forged or Chaity Bai had not executed the Will in respect of suit property in favour of Santosh when she was of sound mind.

10. Similarly, in the cross-examination of Defendant Witness No.2 (Rajkumar Barman) and DW.3 (Kusum Bai) nothing of substance has come on the basis of which it can be said that Will in favour of Santosh is forged. DW.4 (Munnalal Rajak) and DW.5 (Pradeep Dubey) who are witnesses to the Will in their statements have supported the registered Will and nothing in the cross- examination has come on the basis of which it can be termed as forged or not valid.

11. This second appeal has been filed on the ground that Chaity Bai was illiterate. But, in the considered view of this Court the Will in question has been properly proved as held by the trial Court as well as by first appellate Court.

12. Regarding second limb of argument that no document of title in respect of the property, in respect of which will has been executed, has been produced. In the considered view of this Court the learned trial Court has aptly and correctly given a finding on Issue No.2 on the strength of pleadings of both the parties and evidence before it and observed that she (Chaity Bai) was entitled to execute the Will (Exhibit-D/1) in respect of the suit property in her own right. In fact, in written statement in paragraph 9 specific pleading has been taken that the suit property was in the ownership of deceased-Chaity Bai, after

the death of her husband-Mattolal. In fact, in paragraph 9 of the written statement what is replied is that the suit property which was Willed should go to defendant-Santosh, as plaintiffs are heirs of II schedule as per section 8 of Hindu Succession Act, whereas Defendant-Santosh has obtained the suit property from Chaity Bai who was owner of the property after death of her husband as heir of First Schedule. Therefore, objection of class of heir as per Hindu Succession Act is meaningless.

13. Even otherwise, the jurisdiction of this Court to interfere with the findings of fact under Section 100 of the Code of Civil Procedure is well defined by catena of decisions of the Supreme Court. This Court cannot interfere with the finding of fact until or unless the same is perverse or contrary to material on record. [See: Narayan Rajendran and Anr. v. Lekshmy Sarojini and Others, (2009) 5 SCC 264, Hafazat Hussain v. Abdul Majeed and Others, (2001) 7 SCC 189, Union of India v. Ibrahim Uddin and Antoher, (2012) 8 SCC 148, D.R. Rathna Murthy v. Ramappa, (2011) 1 SCC 158 Vishwanath Agrawal v. Sarla Vishnath Agrawal, (2012) 7 SCC 288, Vanchala Bai Raghunath Ithape v. Shankar Rao Babu Rao Bhilare, (2013) 7 SCC 173 and Laxmidevamma and Others v. Ranganath and Others, (2015) 4 SCC 264] The concurrent findings of fact recorded by the courts below are based on meticulous appreciation of evidence on record which by no stretch of imagination can be said either to be perverse or based on no evidence.

14. Therefore, for the reasons stated hereinabove, this appeal does not have any substantial question of law, on which this appeal may be admitted for further hearing. Accordingly, no substantial question of law arise in this appeal. Hence, it is dismissed at admission stage itself.

15. Let a copy of this judgment be sent to the concerned courts alongwith their respective original records.

(AVANINDRA KUMAR SINGH) JUDGE RM