RAMNARAYAN Vs. GEETA PRASAD

JUDGEMENT

(1.) This second appeal preferred by the plaintifs was admitted for hearing by formulating the following substantial questions of law:-

(2.) The suit property was originally held by Chintamani Dubey. He and his wife Basanti Devi died issue-less. The plaintifs are sisters' sons of Chintamani Dubey. Plaintif No.1 Ramnarayan is Kunti Devi's son and plaintif No.2 Suraj Prasad Mishra is son of Bhagmen Bai. They fled suit that they be declared title-holders of the suit land and defendants No.1 & 2 be restrained from interfering with their possession in which the defendants setup a plea that Will dated 15- 6-1989 (Ex.D-9) has been executed by Chintamani in their favour, therefore they are title-holders.

(3.) The trial Court upon appreciation of oral and documentary evidence on record dismissed the suit holding that the plaintifs have not questioned the unregistered Will Ex.D-9 branding the same to be fabricated or false and therefore the Will remained uncontested and as such, the plaintifs are not entitled for any decree. The frst appeal fled by the plaintifs sufered same fate in which the frst appellate Court held that since the scribe DW-1 Geeta Prasad is not the attesting witness and though the Will has not been proved, yet since the defendants have not sought any declaration with regard to the Will dated 15-6-1989 to be void, therefore, the plaintifs cannot succeed the property and further held that since one Civil Suit No.156A/2001 fled by Nanka Sharma and two others is pending consideration, the plaintifs herein can join as party and contest the same and thereby dismissed the appeal against which this second appeal has been preferred by the plaintifs in which two substantial questions of law have been framed which have been set-out in the opening paragraph of this judgment.