Rajasthan High Court - Jodhpur

Surendra Prakash And Ors vs Lrs Of Meghraj on 29 March, 2023

Bench: Rekha Borana

[2023/RJJD/007387]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 181/2015

1. Surendra Prakash, son of late Shri Vishnu Dutt Joshi

2. Srilal, son of late Shri Vishnu Dutt Joshi

3. Manmohan, son of late Shri Vishnu Dutt Joshi

4. Brijkishore, son of late Shri Vishnu Dutt Joshi

5. Ramesh Kumar, son of late Shri Vishnu Dutt Joshi

6. Vinod Kumar, son of late Shri Vishnu Dutt Joshi

7. Naresh Kumar, son of late Shri Vishnu Dutt Joshi

8. Smt. Vijaya Kumari, wife of Shri Kanhaiya Lal Bissa, daughter of late Shri Vishnu Dutt Joshi All residents of Alakh Sagar Kuwa, Mal Godam Road, Bikaner

----Appellants Versus

1. Legal Representatives of Meghraj son of Gordhandas by caste Joshi 1/1. Shiv Prasad, son of late Shri Meghraj, by caste Joshi, resident of Alakh Sagar Kuwa, Bikaner 1/2. Liladhar, son of late Shri Meghraj, by caste Joshi, resident of Alakh Sagar Kuwa, Bikaner 1/3. Premlata, daughter of late Shri Meghraj, by caste Joshi, resident of Alakh Sagar Kuwa, Bikaner 1/4. Snehlata, daughter of late Shri Meghraj, by caste Joshi, resident of Alakh Sagar Kuwa, Bikaner 1/5. Jamna Devi, widow of late Shri Meghraj, by caste Joshi, resident of Alakh Sagar Kuwa, Bikaner.

                                                                 ----Respondents


For Appellant(s)           :    Mr. M.S. Purohit
For Respondent(s)          :    Mr. Salil Trivedi



              HON'BLE MS. JUSTICE REKHA BORANA

                                 Judgment

29th/03/2023

The present second appeal has been preferred against the

judgment and decree dated 26.02.2015 passed by the Additional

District Judge No.3, Bikaner in Civil Appeal No.112/2012 whereby

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the appeal against the judgment and decree dated 21.03.2007

passed by the Additional Civil Judge (Jr. Division) No.2, Bikaner

has been dismissed and the judgment of the trial Court decreeing

the suit of the plaintiff for possession has been affirmed.

The brief facts of the case are as under:

The plaintiff Meghraj son of Gordhandas preferred a suit for

possession and mesne profits against the defendants with a

submission that the residential property in question was

purchased by his father Gordhandas in the year 1941 but

Gordhandas, just for the satisfaction of his father Balkishan, got

the patta of the said property prepared in the name of Balkishan.

Subsequently, because of the fact that the property was

purchased by Gordhandas only, Balkishan executed a will dated

11.07.1949 in favour of Gordhandas which was registered on

13.07.1949. In the year 1970, vide a registered sale deed dated

13.02.1970, the suit property was sold by Gordhandas to his son

Meghraj, the plaintiff and since then he is in possession being the

owner of the property. In the year 1975, half of the property was

encroached upon by Vishnu Dutt, brother of the plaintiff and

father of the defendants. It has been averred in the plaint that

possession of Vishnu Dutt Joshi on the suit property was illegal

and after his death, that of the defendants is also illegal and the

plaintiff is entitled to get back the possession of the property, he

being the rightful owner of the same. A prayer for mesne profits

qua the user of the property was also made.

The case of the defendants had been that the land was

purchased by Balkishan only and since the purchase, all his sons

remained in possession of the property as coparceners. The

[2023/RJJD/007387] (3 of 9) [CSA-181/2015]

property was orally partitioned by Balkishan during his lifetime

and in terms of the said oral partition, the disputed property was

allotted in favour of Gordhandas. The defendant was in

possession of the disputed property since the year 1957 being the

son of Gordhandas. Balkishan was not in good health and the will

had not been executed by him in a sound state of mind. Further

that, because of the long and uninterrupted possession since the

year 1957, the title in favour of Gordhandas, even if any, stood

extinguished in view of the adverse possession of the defendants.

Further that Gordhandas had no right to sell the property as he

was not the exclusive owner but was one of the coparceners.

Criminal proceedings under Section 145, Cr.P.C. on total wrong

facts were also initiated by the plaintiff against the defendants but

the same was also dismissed.

The suit as preferred by the plaintiff was partly decreed by

the trial court and the defendants were directed to hand over the

physical possession of the disputed property to the plaintiff within

a period of two months. Appeal against the judgment and decree

dated 21.03.2007 preferred by the defendants has also been

dismissed vide judgment and decree dated 26.02.2015.

Aggrieved against the same the present second appeal has

been preferred.

The primary ground argued before this Court by counsel for

appellants is that the Courts below have erred in relying upon the

will dated 11.04.1949 whereas the same could not have been held

to be proved, as in terms of Section 68 of the Evidence Act, 1872

it was mandatory for at least one of the attesting witnesses to the

said will to have deposed and proved the said document. As the

[2023/RJJD/007387] (4 of 9) [CSA-181/2015]

plaintiff himself admitted that one of the attesting witnesses was

alive, he ought to have been produced in the witness box and the

same having not been done, the will could not have been said to

be proved in terms of Section 68 of the Evidence Act. Learned

counsel pointed out the specific admission of the plaintiff Meghraj

(PW-1) in his statements, recorded in the year 1990 that

Lalchand, one of the attesting witnesses to the will was alive at

that point of time. Therefore, the said witness Lalchand ought to

have been produced to prove the document and the same having

not been done, the Courts below have erred in law in ignoring the

mandatory requirement in terms of Section 68 and in holding the

document to be proved taking a presumption in terms of Section

90 of the Evidence Act.

Second ground raised by learned counsel for the appellants

is that the defendants-appellants were in possession of the

property since 1957 and thus, by virtue of principle of adverse

possession, the right of the plaintiff, even if any, stood

extinguished.

The next ground raised before this Court is that a suit for

possession simpliciter was not maintainable without a prayer for

declaration being sought for. Therefore, the suit of the plaintiff for

possession and injunction without any relief for declaration been

prayed for, ought to have been dismissed only on this ground.

Learned counsel submitted that the factum of the defendants

being in possession is even evident from the fact that the criminal

proceedings under Section 145, Cr.P.C. initiated by the plaintiff in

the year 1975 were decided against him as the Court reached to a

[2023/RJJD/007387] (5 of 9) [CSA-181/2015]

specific conclusion that the defendants had not encroached on the

property but were in lawful possession of the same.

Per contra, learned counsel for the respondents submitted

that the provisions of Section 68 of the Evidence Act would not

apply in the present matter as the statements of PW.1-Meghraj

were recorded in the year 1990 and statements of PW.3-Shiv

Prasad Joshi son of Meghraj were recorded in the year 2005 and in

his chief examination he specifically stated that none of the

attesting witnesses to the will were surviving at that point of time.

There has been no cross-examination on that aspect from the said

witness. Even in his cross-examination, the witness has not

denied the factum of death of the attesting witnesses. Therefore,

Section 68 of the Evidence Act would clearly not apply to the

present matter. Learned counsel further submitted that it was

rather a case of clear admission on behalf of the defendants

themselves regarding the execution of the will. He referred to the

statements of DW.2-Rajendra Das Joshi who specifically admitted

that the will had been executed by Balkishan and vide the will, the

property in question was bequeathed to Gordhandas. Learned

counsel therefore submitted that in view of the specific admission

of the defendant witnesses themselves, the learned Courts below

rightly presumed the document to be valid in terms of Section 90

of the Evidence Act as the same was a 30 years old document and

the writer of the said document as well as the executant and

attesting witnesses had all expired.

Replying to the plea of adverse possession as averred by

learned counsel for the appellants, learned counsel for the

respondents submitted that the said plea itself is sufficient to

[2023/RJJD/007387] (6 of 9) [CSA-181/2015]

prove that the plaintiff was true owner of the land in dispute

because adverse possession can be pleaded only against a true

owner. Learned counsel submitted that the appellants cannot blow

hot and cold at the same time as in the written statement the

defendants pleaded possession of the property by virtue of oral

partition done by Gordhandas during his life time and on the other

hand, have pleaded adverse possession. If the defendants plead

possession on the basis of oral partition, they cannot plead

adverse possession. Two contradictory pleadings/stand taken by

the defendants are itself sufficient to demolish the case of the

defendants.

So far as the maintainability of the suit in absence of relief

for declaration is concerned, learned counsel submitted that the

plaintiff had the title of the land in his favour and therefore, he

was not required to pray for any declaration in his favour. A true

owner having a title in his favour is not required to get any

declaration and it was the specific case of the plaintiff that he is

the true owner of the land and the defendants had encroached

upon half portion of the land of which the possession was prayed

for.

None of the counsels relied upon any judgment in support of

their contentions.

Heard learned counsel for the parties and perused the

material available on record.

Before adverting into the first and the primary ground raised

by learned counsel for the appellants, it is relevant to note that

two other grounds regarding adverse possession and the

maintainability of the suit raised by learned counsel for the

[2023/RJJD/007387] (7 of 9) [CSA-181/2015]

appellants before this Court during the course of arguments have

neither been pleaded in the memo of appeal nor any substantial

question of law has been pleaded to have arisen or proposed to be

framed. A perusal of the record shows that though issue No.5A

had been framed qua the plea of adverse possession and the

same had been decided against the defendants, no ground

pertaining to issue No.5A has been raised in the present memo of

appeal. So far as the ground regarding the maintainability of the

suit is concerned, no pleadings qua the same had been made even

before the trial court. Therefore, this Court is not inclined to

entertain the said two grounds as raised by the learned counsel

for the appellants in the present second appeal.

Coming on to the primary and sole ground raised in the

present second appeal as to whether the presumption drawn by

the Courts below under Section 90 of the Indian Evidence Act,

1872 for the proof of the will in question is correct, the question

would be whether the plaintiff was even required to prove the will

in question. It is clear on record that the will was a registered one

and the execution of the same was specifically admitted by the

defendants themselves. The defendants in their written statement

came up with the case that some apprehension was created in the

mind of Gordhandas regarding the oral partition and therefore, he

got the will executed in his favour. It has further been pleaded

that Balkishan had no right to execute the will in favour of

Gordhandas. Meaning thereby, the factum of execution of the will

has not been disputed. It is only the authority of the executant

which has been disputed. The plea as raised by the original

defendant in his written statement qua the will is as under:

[2023/RJJD/007387] (8 of 9) [CSA-181/2015]

"¼2½ ;g fd uaŒ 2 vjthnkok cotg xyr c;kuh Lohdkj ugha gSA fxUuk.kh esa tks QjhdSu ds ewjlku dh tehu gS og okLro esa xksj/kunkl th ds firk us ekS:lh U;wfDy;l ls [kjhnh Fkh tks mudh o muds yM+dks dh dksiklZujh tk;nkn ds :i esa gh ,Dok;j gqbZ o dksiklZujh tk;nkn gh jghA okLro esa xksj/kunkl th ds firkth us dksiklZujh tk;nkn dk ekSf[kd foHkktu djds mDr vkjkth xksj/kunklth ds fgLls esa ,yksV djnh Fkh vkSj rHkh ls xksj/kunkl th bl ekS:lh tk;nkn ds ekfyd o dkfct gks x;s Fks ckn esa yksxksa us muds eu esa cge Mky fn;k Fkk fd Hkfo'; esa blfy, VaVk gksus dk vans"kk gks ldrk gS fd foHkktu ekSf[kd fd;k gqok gS vr% mUgksaus viuh rlYyh ds fy, vius firkth ls vius gd esa olh;r Hkh djkyh Fkh tks vuko";d rFkk izHkko "kwU; FkhA cge iSnk gks tkus ls xksj/kunkl th us olh;r esa vius larks'k ds fy, dqN xyr ckrsa Hkh fy[kkbZA ijUrq cge xyr lkfcr gqokA dksbZ VaVk ugha gqokA vkSj og vuf/kd`r] voS/k izHkko "kwU; o vuko";d olh;r fujFkZd iM+h jghA"

Further, (DW2) Dr. Rajendra Joshi, one of the descendants of

Balkishan in his cross-examination specifically admitted as under :

"esjs nknkth ds olh;r ds vuqlkj ;g tehu xksj/kunkl th dks VªkalQj dh xbZA olh;r eSaus i<+h Fkh ;s [email protected]@49 dh FkhA"

Evidently, the execution of the will was not disputed by the

defendants themselves. The only issue raised was that Balkishan

had no right to execute the said will and that he did not execute

the same with a sound mind. Therefore, in the opinion of this

Court, the will in question which was an admitted document on

record was firstly, not even required to be proved by the plaintiff

and secondly, even if it is assumed that the same was required

to be proved, Section 68 of the Evidence Act would not apply. As

it was proved on record, neither the executant nor the attesting

witnesses were alive, presumption under Section 90 was the most

plausible recourse and the same was rightly adopted by both the

Courts below.

Section 90 of the Act reads as under:

"90. Presumption as to documents thirty years old.--Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular

[2023/RJJD/007387] (9 of 9) [CSA-181/2015]

person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Explanation.--Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.

This Explanation applies also to section 81."

So far as the pre-requisites for taking a presumption under

Section 90 are concerned, the document (will) being more than 30

years old is not in dispute and the same has been placed on

record by the plaintiff in whose custody it ought to have been and

the said fact being undisputed, the findings as arrived by the

Courts below do not deserve any interference by this Court.

In view of the above analysis and observations, no

substantial question of law arise in the present appeal and the

same is therefore, dismissed.

Stay petition and all pending applications stand disposed of.

After the judgment being pronounced, counsel for the

appellant prayed for grant of two months time for vacation of the

premises. The prayer is allowed and two months' time is granted

to the appellants to handover the vacant possession of the suit

property to the respondents. It is directed that the appellants

shall not transfer, alienate or create any third party rights in the

property meanwhile.