KANCHHI LAL KALYAN Vs. BHAGWAN DEI

JUDGEMENT

(1.) -THE present second appeal has been instituted against the judgment and decree dated 5. 2. 2008 passed by Addl. District Judge, Khurja District Bulandshahr in Civil Appeal No. 10/84 Smt. Bhagwan Dei and others v. Kanchhi Lal and others. By the impugned judgment and decree learned Addl. District Judge, Khurja allowed the appeal of the appellants and set aside the judgment and decree of the Trial Court.

(2.) FROM perusal of the judgment of the Court's below it is evident that Kanchhi Lal and after his death his sons instituted and maintained original suit No. 76 of 1980 in the Court of Civil Judge (JD) Khurja Bulandshahar for cancellation of the Will dated 27. 12. 2006 executed by Godha in favour of Bhagwan Dei and others of his 1/2 share in plot No. 805 measuring three bighas one biswa and 9 dhoor situate at village Kamauna Pargana Pahasu District Bulandshahar. Prayer was also made for permanent prohibitory injunction not to interfere in the possession of the plaintiffs. It has been alleged in the plaint that Godha deceased was real brother of plaintiff Kanchhi Lal and he died on 19. 1. 1980. That defendant Nos. 1 to 3 are the married daughters of Godha. Godha during his lifetime lived with Kanchhi Lal. Kanchhi Lal and his sons looked after the welfare of Godha and they had also been cultivating the land of Godha. At the time of his death Godha never executed any Will in favour of the defendants Nos. 1 to 3. And hence after the death of Godha his property was inherited by the plaintiff Kanchhi Lal as his sole legal heirs and the property in dispute is Khata No. 61 plot No. 728 measuring 4 bigha 14 biswa and 13 dhoor and Khata No. 212 plot No. 805 measuring three bigha one biswa and nine dhoor to the extent of half share. After his death Kanchhi Lal occupied the property in dispute as his legal heirs and at present the property in dispute is in the possession of the plaintiff. That due to enmity certain persons of the village wanted to occupy the land of the share of Godha with the collusion of defendants No. 1 to 3. In the mutation proceedings before Tahsildar Khurja objections were filed by the plaintiffs and it was specifically alleged that no Will was executed by Godha during his life time and no right and title shall accrue in favour of the defendant on the basis of the Will. But even then defendants No. 1 to 3 and others continued to interfere in the possession of the plaintiffs even after the order of Tahsildar regarding mutation in favour of the plaintiffs. The defendants respondents contested the suit filed written statement and denied the allegations of the plaint. It has further been alleged that the defendant respondents are the daughters of Godha. And during his life time Godha executed a Will in favour of his three daughters. It has further been alleged that Smt. Mahadei along with her husband lived in the village of Godha and rendered all source of services to him and that they were also looking after the agriculture of Godha. That Godha in his full sense and by his free will executed a Will in favour of the defendants and it is wrong to allege that the Will is a forged document. That Godha died in suspicious circumstance and there may be possibility of murder.

(3.) ON the pleadings of the parties learned Addl. Civil Judge (JD) framed as many as seven issues for the decisions of the suit. Both the parties adduced oral as well as documentary evidence in favour of their contentions. On the basis of the evidence learned Addl. Civil Judge 0d) vide judgment and decree dated 30. 5. 2003 decreed the suit of the plaintiffs appellants and the Will dated 27. 12. 1976 executed by Godha in favour of the respondent was declared as null and void and the same was cancelled. Relief of injunction was also granted. On being aggrieved from the judgment and decree of the Trial Court the defendant-respondents instituted Civil Appeal No. 10 of 2002 and the Civil appeal was decided by Addl. District Judge Khurja vide judgment and decree dated 5. 2. 2008 and by the judgment and decree the Appellate Court allowed the appeal and set aside the judgment and decree of the Trial Court. And on being aggrieved from the judgment and decree of the Appellate Court the second appeal has been instituted.