Rajasthan High Court
Radhayshyam S/O Shri Kalyanath vs Mahendra S/O Shri Prabhulal ... on 31 October, 2023
Bench: Mahendar Kumar Goyal
[2023:RJ-JP:32138]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 126/2021
Radhayshyam S/o Shri Kalyanath, Aged About 63 Years, R/o
Village Barana, Tehsil And District Baran Raj.
----Appellant/Plaintiff
Versus
Mahendra S/o Shri Prabhulal, aged about 39 years, R/o Village
Barana, Tehsil And District Baran Raj.
----Respondent/Defendant
For Appellant(s) : Mr. Samarth Sharma
For Respondent(s) : Mr. Amit Jindal
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Judgment / Order
31/10/2023
This civil second appeal, which is reported to be time barred
by 895 days, is accompanied with an application under Section 5
of the Limitation Act, 1963 (for brevity, "the Act of 1963").
Reiterating the averments made in the application, learned
counsel for the appellant submits that delay occurred in preferring
the second appeal as he is a poor villager and an illiterate person.
He, therefore, prays that the application be allowed and the delay
in preferring the second appeal be condoned.
Heard. Considered.
The reasons assigned in the application seeking condonation
of inordinate delay of 895 days are far from satisfactory. Merely
because the appellant is a poor villager and an illiterate person,
the huge delay cannot be condoned.
Resultantly, the application does not merit acceptance.
[2023:RJ-JP:32138] (2 of 3) [CSA-126/2021]
However, in the interest of justice, learned counsel for the
appellant has been heard on merits of the civil second appeal
which has been preferred against the judgment and decree dated
12.10.2018 passed by the learned District Judge, Baran
(Rajasthan) (for brevity, "the learned Appellate Court") dismissing
the civil first appeal and upholding and affirming the findings
recorded by the learned Senior Civil Judge, Baran, District Baran
(for brevity, "the learned trial Court") dismissing the civil suit filed
by the appellant/plaintiff for declaration, cancellation of the will
dated 05.10.2009 and permanent injunction.
Negating the contention of the plaintiff that the will dated
05.10.2009 was prepared fraudulently by the defendant putting on
it thumb impression of a dead person, i.e., of its testator Shri
Kalyan Nath after his death, it was held by the learned trial Court,
after appreciating the evidence on record especially the deposition
of the plaintiff as PW-1, that while the will is dated 05.10.2009,
Shri Kalyan Nath had expired on 13.12.2009 and by that time, the
testator was hale and hearty. These findings have been affirmed
by the learned Appellate court re-appreciating the evidence on
record.
Assailing the aforesaid concurrent finding of facts, the only
contention advanced by the learned counsel for the plaintiff is that
the defendant failed to adduce any evidence to show that the will
was genuine and valid. It is trite law that it is for the plaintiff to
stand on his own legs to succeed in his case and he cannot take
benefit of the weakness, even if any, in defence. Since, the
concurrent finding of facts recorded by the learned Courts have
not been assailed before this Court, this Court finds no reason to
[2023:RJ-JP:32138] (3 of 3) [CSA-126/2021]
interfere with the same in its limited jurisdiction under Section
100 CPC.
Resultantly, the application under Section 5 of the Act of
1963 as also the second appeal are dismissed being devoid of
merit.
(MAHENDAR KUMAR GOYAL),J
Sudha/103
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