CHITRAREKHA Vs. SITARAM

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 30.07.1998 passed in Civil Appeal No. 71-A of 1998 by the Additional District Judge, Balod, Dist. Durg reversing the judgment and decree dated 18.09.1997 passed in Civil Suit No. 42-A/1994 by the 1st Civil Judge, Class-1, Balod, District Durg, defendant No. 1/appellant has preferred this appeal. Ramadhin and Ramcharan were recorded Bhumiswami of 5.59 hectares of land situated in village Chirchari, Tahsil Gurur, District Durg. Upon an amicable partition between two brothers, 2.80 hectares fell in share of Ramadhin, who has been in possession thereof till his death on 05.12.1992. According to the appellant, Ramadhin was deaf and dumb since birth.

(2.) Upon death of Ramadhin on 05.12.1992, Sitaram (nephew of Ramadhin), the plaintiff claimed his estate under the will (Ex. P. 1) said to have been executed on 20.10.1992 re-written on the stamp paper on 16.11.1992, registered after his death at the instance of Sitaram on 18/19.08.1993. Chitrarekha, defendant No. 1, while denying the will, claimed herself as daughter of deceased - Ramadhin. The entry in Birth and Death register, 1966 (Ex. D. 6) records Chitrarekha having been born from Ramadhin on 24.05.1966. The certificate has been issued by the District Statistical Officer/District Registrar, Birth & Death, District Durg under the Registration of Births and Deaths Act, 1969 (hereinafter referred to as 'the Act of 1969'). Upon death of Ramadhin, there were mutation proceedings before the Revenue Court. By order dated 23.06.1993 (Ex. D. 4), the Tahsildar, Gurur, directed mutation of Chitrarekha negativing the will and accepting that Chitrarekha as daughter of Ramadhin, the deceased. The appeal preferred by respondent No. 1 was dismissed and revenue papers were corrected accordingly recording the name of Chitrarekha as Bhumiswami in possession of estate left behind by Ramadhin. Meanwhile, on 08.09.1994, Sitaram instituted a suit claiming declaration of his title upon suit-land (2.80 hectares described in schedule - B of the plaint) and injunction restraining Chitrarekha from interfering with his possession of the estate left behind by Ramadhin, on the basis of will (Ex. P. 1) asserting that Chitrarekha is not the daughter of Ramadhin, the deceased.

(3.) Vide judgment and decree dated 18.09.1997, the trial Court dismissed the claim observing that in absence of Khasra Number in will (Ex. P. 1), the will does not confer any right, title or interest upon Sitaram, the plaintiff. Furthermore, the will is suspicious and meaningless as the plaintiff has not proved possession over the suit land and that Chitrarekha is the daughter of Ramadhin.