SAHANGI Vs. KHURAI

JUDGEMENT

(1.) HEARD learned counsel for the parties. This petition has been filed assailing the correctness of the order dated 29.05.2008 passed by the Additional District Judge, Court no.2, Ghazipur in Misc. Appeal No.1 of 2003, Sachiya Versus Mahangi and others. The petitioners are the defendant in a Suit filed by Sachiya for injunction and cancellation of unregistered will dated 15.12.1985 executed by Raghunath in favour of Jagga. Chottan had three sons viz. Rahunath, Jagga and Shivnath.? Sachiya claims to be daughter of Raghunath. The petitioners are the heirs of Jagga in the suit. Heirs of Sachiya were also impleaded as defendants in the suit. Sachiya also filed an application for grant of temporary injunction during the pendency of the Suit under Section 39 Rules 1 and 2 of C.P.C. The said application was rejected by the Trial Court against which Misc. Appeal was filed in which the order impugned has been passed. After death of Sachiya the respondents in this petition being heirs of Shivnath filed an application for being substituted as heirs of Sachiya on the basis of registered will said to have been executed in their favour and further for being transposed as plaintiff. Objections were invited to the substitution application and also to the transposition as plaintiff. The petitioner filed an application that expert opinion be called for comparison and verification of the thumb impression of Sachiya on the plaint as also on the registered will, which was the basis of the plaint of the respondents. The Appellate Court by the impugned order has rejected the said application on the finding that it was not the appropriate stage for examining the thumb impression of Sachiya

(2.) LEARNED counsel for the petitioner has sought to argue that the thumb impression on the plaint and on the registered will said to have been executed by the Sachiya were of different person. The respondents (heirs of Shivnath) had set up the case that Sachiya is the daughter of Raghnath whereas in fact Raghunath had died issue less. He further submitted that in view of the above facts it was essential to get the thumb impression verified and only thereafter allow the respondent to prosecute the suit. In the opinion of the court, the order of the Appellate Court does not suffer from any infirmity for the reason that the Trial Court was the appropriate forum where such evidence could be led and finding would be recorded. Substitution does not confer any right, title or interest to any party. It only permits the person claiming to be legal heirs or representative to carry on the proceedings on behalf of the deceased. As and when the matter is proceeded before the Trial court, it would be open to the parties to raise necessary objection and claim for necessary evidence which the Trial court will deal in accordance with law after framing necessary issues and record an appropriate finding after consideration of such evidence. The petition lacks merit and it is accordingly dismissed.