Abid Ali S/O Gulam Sarvar vs Haji Abdul Gafur S/O Late Haji ...
2023 Latest Caselaw 5792 Raj/2

[2023:RJ-JP:28424]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 383/2019

Abid Ali S/o Gulam Sarvar, Aged About 34 Years, R/o Rangrej,
Resident Of Idgah Road, Ward No. 7, Tehsil And District Sikar
                                                      ----Defendant no.1-Appellant
                                           Versus
1.        Haji Abdul Gafur S/o Late Haji Mohammad Husain,
          Resident Of Near Kharia Kua, Mochiwada, Ward No. 2,
          Sikar Tehsil And District Sikar
                                                           ..........Plaintiff-Respondent

2. Yasin S/o Alarakh, Resident Of Ward No. 6, Behind The Tehsil Sikar, Tehsil And District Sikar

----Defendant no.2-Respondent

For Appellant(s) : Mr. Amit Singh Shekhawat For Respondent(s) :

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment / Order

10/10/2023

This civil second appeal is preferred against the judgment

and decree dated 10.05.2019 passed by the learned Additional

District Judge No.3, Sikar (Rajasthan) (for brevity, "the learned

Appellate Court") in Regular Civil Appeal CIS No.315/2014

whereby, while dismissing the appeal preferred by the

appellant/defendant no.1 (for brevity, "the defendant no.1"), the

judgment dated 12.11.2008 passed by the learned Additional Civil

Judge (Junior Division) No.1, Sikar (for brevity, "the learned trial

Court") partly decreeing the suit filed by the respondent

no.1/plaintiff (for brevity, "the plaintiff") for declaration,

cancellation of the will and permanent injunction, has been

upheld.

[2023:RJ-JP:28424] (2 of 4) [CSA-383/2019]

The relevant facts in brief are that the plaintiff filed a suit for

cancellation of the will dated 17.02.1992, declaration and

permanent injunction against the defendant no.1 and the

respondent no.2/defendant no.2 (for brevity, "the defendant

no.2") stating therein inter-alia that an undivided ancestral

property of the plaintiff and the defendant no.1 comprising of two

shops on the ground floor and a residential house on the first floor

is situated in Ward no.7 (new 22), Sikar. It was averred that the

suit shop was let out by his father to the defendant no.2 on

17.10.1979. It was alleged that claiming his right in the subject

shop on the strength of a will allegedly executed by plaintiff's

father in his favour, the defendant no.1 has filed an application

with the learned Rent Tribunal, Sikar seeking eviction of the

defendant no.2. Therefore, the decree as aforesaid was prayed for.

The defendant no.1 in his written statement, denying the

averments made in the plaint, submitted that late Shri Haji

Mohammad Husain, father of the plaintiff, has bequeathed the suit

shop to him through a will.

The defendant no.2, in his written statement, submitted that

that he would abide by direction of the Court.

On the basis of pleadings of the respective parties, the

learned trial Court framed five issues including relief. After

recording evidence of the respective parties, the learned trial

Court partly decreeing the suit, declared the will dated 17.02.1992

to be null and void against the rights of the plaintiff and directed

its impounding. The civil first appeal preferred thereagainst by the

defendant no.1 has been dismissed by the learned Appellate Court

vide judgment and decree dated 10.05.2019.

[2023:RJ-JP:28424] (3 of 4) [CSA-383/2019]

Assailing the impugned judgment and decree, learned

counsel for the defendant no.1 submitted that findings of the

learned Courts are against the evidence on record. He, therefore,

prays that the civil second appeal be allowed, the judgment and

decree dated 10.05.2019 be quashed and set aside and the suit

be dismissed.

Heard. Considered.

While partly decreeing the suit, the learned trial Court has

held that it was the defendant's case that he was under

ownership/possession of the subject property on the strength of

the will as also the family settlement dated 08.09.1996 (Ex-2);

however, a perusal of the family settlement neither revealed that

the subject property fell in his share nor, the will is mentioned

therein and had the subject property been bequeathed in his

favour through the subject will, it would definitely have been

mentioned in the family settlement being subsequent in point of

time. It was further held by the learned trial Court that while, the

stamp paper on which the will was drawn, was purchased on

01.02.1993, the will was allegedly executed on it on 17.02.1992,

which was impossible. The learned trial Court also took note of the

fact that in the notice issued by the defendant no.2 to the legal

heirs of deceased-Husain, the landlord, name of the plaintiff was

also mentioned; but, in his reply to the aforesaid notice, the

defendant no.1 did not disclose the factum of execution of the will

by Late Shri Husain in his favour. It was observed that despite

having opportunities on several occasions to do, the defendant

no.1 did not disclose execution of will by late father of the plaintiff

in his favour which raised serious doubts about its veracity. These

[2023:RJ-JP:28424] (4 of 4) [CSA-383/2019]

findings have been affirmed by the learned Appellate Court

reappreciating the evidence on record.

In view of aforesaid findings of the learned Courts wherein,

execution of the will in favour of the defendant no.1 was found to

be highly suspicious which could not be dispelled by him, in the

considered opinion of this court, learned Courts did not err in

partly decreeing the suit.

Since, the learned counsel for the defendant no.1 could not

satisfy this Court that concurrent findings of facts recorded by the

learned Courts suffer from any illegality, infirmity, perversity or

jurisdictional error, this civil second appeal is dismissed being

devoid of any substantial question of law.

(MAHENDAR KUMAR GOYAL),J

Sudha/96

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