KAILASH SINGH Vs. MEWALAL SINGH GOND

JUDGEMENT

(1.) This is a revision by the plaintiff against the order by which the defendants appeal under order 43 rule 1 (r) C.P.C. has been allowed and the order of temporary injunction passed by the trial Court in favour of the plaintiff has been set aside.

(2.) The lands in dispute belonged to Biran Singh Gond belonging to scheduled tribe. After his death these lands came into possession of his widow Shantibai. According to the plaintiff she was absolute owner of these lands; she bequeathed the same to the plaintiff who is son of her brother by her will dated 19-4-1992; she died on 16-8-1992 and the plaintiff came into possession of these lands on her death. On the other hand the defedants who are the reversioners of the husband of Shantibai claim that she was only a limited owner of the lands in dispute after the death of her husband; the will on which the plaintiff is relying is forged and the defendants are in actual possession of the lands after the death of Shantibai.

(3.) The trial Court held on the basis of mutation entry in favour of the plaintiff that he is in possession of the lands in dispute and issued the order of temporary injunction in his favour. The appellate Court has held that the plaintiff does not have a strong prima-facie case because - (a) the Hindu Succession Act, 1956 not being applicable to Gonds, a scheduled tribe, by virtue of S.2(2) of the Act, Shantibai was prima facie only a limited owner of the lands as per traditional Hindu law and she could not execute the Will in favour of her nephew and (b) the unregistered will requires proper proof of its execution and attestation and that can be done during the trial of the suit only and (c) the lands are in possession of the defendants. On these prima facie findings, the order of temporary injunction issued by the trial Court has been vacated.