PARANRU RADHAKRISHNAN Vs. BHARATHAN

JUDGEMENT

(1.) Plaintiff is the appellant. His suit for injunction to restrain the defendant from trespassing into the plaint schedule property was dismissed by the Munsiff and it has been confirmed by the District Judge. The case of the plaintiff is that the plaint schedule property having an extent of 7 cents which is a puramboke land is in his possession for the past 20 years, that he has made valuable improvements in it, that he has constructed a building and that he has been residing there. Defendant contended that the property belonged to Paramu, father of the plaintiff and the defendant, that as per the will Ext. B1 three cents of property on the eastern side has been allotted to him and that he is in possession of the same. It is conceded by the defendant that 4 cents of property is in the possession of the plaintiff.

(2.) Learned District Judge held that the defendant is a co-owner of the property along with the plaintiff and so the plaintiff is not entitled to the injunction prayed for in the suit. To hold so, the learned District Judge relied on Ext. B2 will. Learned counsel for the plaintiff submitted that the will has not been proved as contemplated under S.68 of the Indian Evidence Act and as none of the attestors to the will was examined, it is not admissible in evidence. The learned District Judge relying on Mahadeo Prasad v. Ghulam Mohammad, AIR 1947 All 161 held that though the will has not been proved by examining the attestor, S.68 of the Evidenqe Act does not prevent the document from being used in evidence under S.72 for any other collateral purpose.

(3.) In the case cited supra Allahabad High Court held thus :