SHANTI SWAROOP DECEASED Vs. ONKAR PRASAD DECEASED

JUDGEMENT

(1.) This is a plaintiff's second appeal challenging the judgment and decree dtd. 20/11/1979 passed by the IIAdditional Munsif, Hathras, i.e., the Trial Court dismissing Original Suit No. 13 of 1978 as well as against the judgment and decree dtd. 6/9/2011 passed by the District Judge, Hathras, i.e., the lower appellate court dismissing Civil Appeal No. 23 of 1980 filed against the decree of the trial court.

(2.) The facts relevant for the present Second Appeal are that Brij Lal, who was the common ancestor of the plaintiff and the defendants, was recorded as Bhumidhar of Plot No. 174-Aa (area 24/6/10) which shall hereinafter in short be referred as 'the suit property'. Brij Lal had four sons, namely, Nandan Lal, Babu Lal, Shanti Swaroop (plaintiff) and Onkar (defendant / respondent no.1). It is the common case of the parties that Nandan Lal renounced the world and his whereabouts were not known and Babu Lal died issueless before Brij Lal. Omkar, i.e., defendant no. 1 had five sons, namely, Kamlesh, Hridesh, Janki Prasad, Bhagwati Prasad and Lalta Prasad who are respondent nos. 2 to 6 in the present appeal and were defendant nos. 2 to 6 in the trial court. The defendants claim that Brij Lal executed a registered Will dtd. 5/8/1972 bequeathing all his movable and immovable properties, including the suit property, to defendants/respondent nos. 2 to 6. Hoti Lal Shrama and Shobha Ram were the attesting witnesses of the aforesaid Will. Brij Lal died on 5/11/1976. After the death of Brij Lal, the defendant nos. 2 to 6 got their names mutated in the revenue records on the basis of the Will dtd. 5/11/1976. The plaintiff instituted Original Suit No. 13 of 1978 praying for cancellation of Will dtd. 5/8/1972 pleading that the Will was a forged document and thus void. Alternatively, the plaintiff also pleaded that the suit property was ancestral property and had devolved on Brij Lal from his father and, therefore, under the U.P. Tenancy Act, 1939 the plaintiff and defendant no. 1 were co-tenants of the suit property along with Brij Lal and remained co-tenants under the U.P. Zamindari Abolition and Land Reforms Act, 1950 and, therefore, the plaintiff had 1/3 share in the suit property and the Will regarding his 1/3 share in the suit property was void. The case of the plaintiff is that he came to know about the Will from the Gram Pradhan of the village only six months before the institution of the suit and the suit was within limitation as the cause of action for filing the suit arose when the plaintiff came to know about the Will i.e., six months before the date of filing the suit. The suit was registered in the trial court on 4/1/1978. The defendants filed their written statement denying the averments made in the plaint and stated that the Will was executed by Brij Lal out of his free will and volition and that Brij Lal was the sole tenant of the suit property. In their written statement, the defendants admitted that Brij Lal had died on 5/11/1976 but denied the averments made regarding the date on which the cause of action for filing the suit arose and stated that the plaintiff knew about the execution of the Will even before the death of Brij Lal. On the aforesaid pleadings, the defendants pleaded that the suit was liable to be dismissed on merits as well as on the ground that it was barred by limitation. The issues framed by the trial court and relevant for the present second appeal are as to whether the Will was a forged document and was not executed by Brij Lal, whether Brij Lal was the sole tenant of the suit property and had the right to execute the Will dtd. 5/8/1972 and the relief to which the plaintiffs were entitled? It is relevant to note that no issue regarding limitation was framed by the trial court in Original Suit No. 13 of 1978.

(3.) The trial court vide its judgment and decree dtd. 20/11/1979 dismissed Original Suit No. 13 of 1978. The trial court after holding that Brij Lal was the sole tenant of the suit property and after considering the testimony of Shobha Ram, the attesting witness of the Will and the fact that the Will was a registered document, held that the plaintiff had failed to prove that the Will was a forged document. The trial court held that the plaintiff knew about the execution of the Will from before the date stated by the plaintiff in his plaint and as the suit was not filed within three years from the date the plaintiff came to know about the Will, the suit was barred by Article 59 of the Limitation Act, 1963. Consequently, the trial court held that the plaintiff was not entitled to any relief.