HEMLAL Vs. BUDU DEAD

JUDGEMENT

(1.) This second appeal arising out of the impugned judgment and decree dated 23-07-2003 passed by the Second Additional District Judge, Raigarh in Civil Appeal No.43-A/2001, whereby and whereunder the learned lower appellate Court has reversed the judgment and decree dated 02-08-2001 passed by the learned Trial Court in Civil Suit No.13-A/1992 and dismissed the plaintiff's suit.

(2.) The original plaintiff-Ravi Ram Chouhan filed a suit seeking declaration of his title and recovery of possession of the property in dispute on the pleadings inter alia that the property in dispute was bequeathed by way of will dated 28-08-1980, Ex.P-1 executed by Late Kamla Bai in favour of the plaintiff, because plaintiff was selflessly serving Kamla Bai and out of her affection and affinity towards the plaintiff, Kamla Bai decided to bequeath by way of will, her property in dispute in favour of the plaintiff. Further case of the plaintiff was that the defendant-Buddu, brother of the deceased-Kamla Bai, was working and residing in another country Libiya. According to the plaintiff, cause of action arose when Buddu started interfering with his possession. On such pleadings, the plaintiff sought declaration of title based on will and also alternative relief of recovery of possession over the property in dispute.

(3.) Defendant No.,1-Buddu resisted plaintiff's claim on the pleadings that Kamla Bai, being sister of Buddu, was residing with Buddu. The property in dispute was purchased by Buddu in the name of Kamla Bai. According to him, Kamla Bai never executed any will deed in favour of the plaintiff-Ravi Ram Chouhan and the will deed relied upon by the plaintiff is forged, fabricated and fictitious document. The defendant also made a counter claim in respect of the property in dispute seeking declaration that the defendant has succeeded to the property of the deceased being only surviving heir, under Hindu Succession Act and also for recovery of possession as an alternative relief.