Madhya Pradesh High Court
Munendra Singh vs Summer Singh on 22 August, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:39962
1 SA-3549-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 22 nd OF AUGUST, 2025
SECOND APPEAL No. 3549 of 2019
MUNENDRA SINGH AND OTHERS
Versus
SUMMER SINGH AND OTHERS
Appearance:
Shri A. S. Baghel - Advocate for the appellants.
Shri P.N. Das - Advocate for the respondents 1-8 and 10.
Shri Ramji Pandey - Govt. Adv. for the State/respondent 11.
ORDER
This second appeal has been preferred by the appellants/defendants
challenging the judgment and decree dated 01.10.2019 passed by 1st Addl.
District Judge, Jatara, District Tikamgarh in RCA no.37A/2017 affirming the
judgment and decree dated 30.06.2017 passed by 2nd Civil Judge Class-I, Jatara,
District Tikamgarh in civil suit no.130A/2014 whereby both the Courts below
have concurrently decreed the appellants/defendants 1-2's counter claim filed for
declaration of title and permanent injunction. Fact remains that the suit filed by
respondents 1-8/plaintiffs was already dismissed as withdrawn vide order dated
15.09.2016.
2. Learned counsel for the appellants/defendants 1-2 submits that in the suit
filed by the respondents 1-8/plaintiffs for declaration of title and for declaring the
Will dated 20.03.2013 to be null and void as well as for permanent injunction, the
defendants 1-3 filed written statement as well as counter claim seeking declaration
of title and permanent injunction in favour of defendants 1-2 on the basis of
registered Will dated 20.03.2013 (Ex.D/1) and after dismissal of the suit as
NEUTRAL CITATION NO. 2025:MPHC-JBP:39962
2 SA-3549-2019
withdrawn on 15.09.2016, trial Court proceeded further with the counter claim but
dismissed the same for want of examination of attesting witnesses whereas, the
defendants proved the Will by examination of defendant 1-Munendra Singh,
Scribe-Ghanshaym (DW-2) and Sunil Sharma (sub-Registrar) (DW-3), but
without taking into consideration this evidence in real perspective, trial Court
committed an illegality in holding that the Will is not a proven document. He
submits that before the first appellate Court, along with the civil appeal, an
application under Order 41 Rule 27 CPC was also filed annexing affidavit of
attesting witness-Lalaram and prayed for permission of additional evidence, but
the same was illegally dismissed by first appellate Court on 29.07.2019 and
thereafter, the first appeal has also been dismissed by the impugned judgment for
want of evidence of attesting witnesses. He submits that in such circumstances,
both the Courts below have committed an illegality in dismissing the counter
claim. With these submissions, he prays for admission of the second appeal.
3. Learned counsel appearing for the respondents 1-8 and 10 supports the
impugned judgment and decree passed by Courts below and prays for dismissal of
the second appeal.
4. Heard learned counsel for the parties and perused the record.
5. Undisputedly, the suit property belonged to Jamna Devi, who was
survived by four sons Sumer Singh, Nirpat Singh, Harpal Singh and Govind Singh
and two daughters Rajkunwar @ Rajkumari and Urimla. The defendants 1-2 are
sons of Jamna Devi's son Govind Singh, who claimed themselves to be exclusive
owner of the suit property on the basis of aforesaid Will dated 20.03.2013
allegedly executed by Jamna Devi. It is well settled that if the attesting witnesses
are alive, then the Will can be proved only by examination of the attesting witness
NEUTRAL CITATION NO. 2025:MPHC-JBP:39962
3 SA-3549-2019
and mere examination of scribe and sub-Registrar, who had registered the Will,
does not dispense with the requirement to prove the Will provided under Section
68 of the Evidence Act even if the Will is registered.
6. With a view to fill up the lacunae, the appellants by way of application
under Order 41 Rule 27 CPC filed a copy of affidavit of attesting witness Lalaram
with the permission for taking the same in additional evidence, but record shows
that in support of the application under Order 41 Rule 27 CPC, no affidavit of the
appellants was filed and no sufficient reason was given in the application for non-
examination of attesting witnesses namely Lalaram and Ramakant, especially in
view of the several opportunities granted by trial Court to the defendants for
adducing evidence, which is also mentioned in the order dated 29.07.2019
rejecting the application under Order 41 Rule 27 CPC.
7. In view of the aforesaid discussion and in absence of examination of the
attesting witness, it cannot be said that Courts below have committed any illegality
in dismissing the counter claim.
8. Resultantly, in absence of any substantial question of law, this second
appeal fails and is hereby dismissed.
9. Pending application(s), if any, shall also stand disposed of.
(DWARKA DHISH BANSAL)
JUDGE
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