SUBHASH KUMAR TIWARI Vs. SHANKERLAL

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for declaration and possession. The property in suit is a house situated at Balaghat bearing Nazul Sheet No. 25-A, Plot No. 34, area 112 square meters. Gopilal had purchased this property from Sunder Bai by a registered sale deed dated 8-8-1958. Gopilal died issueless in 1992 as a result of which his wife Birji Bai became the legal heir of the suit property. Narayan was elder brother of Gopilal. He had two wives, Pusi Bai and Ramkawri Bai. Respondent-plaintiff and appellant-defendant are step-brothers having been born from wives Pusi Bai and Ramkawri Bai respectively of Narayan. Gopilal and Birji Bai were thus uncle and aunt of the plaintiff and defendant. The case of plaintiff was that Birji Bai executed a Will dated 25-12-2002 (Exh. P-1), in his favour regarding the suit property and after her death on 2-9-2003, he became its owner. The plaintiff alleged that when he filed an application for mutation of his name before the Tehsildar he came to know that vide order dated 2-7-1993 (Exh. P-7), passed in Revenue Case No. 154-A/92-93 the suit property had already been mutated in the name of defendant on the strength of a registered Will dated 2-7-1993 (Exh. P-5). In the suit, the plaintiff, therefore, prayed that the order (Exh. P-7), of the Tehsildar as well as the Will (Exh. P-5), be declared null and void and he be given possession of the suit property. The plaintiff filed the certified copy of Will (Exh. P-5).

(2.) The defendant in his written statement denied the claim of plaintiff and stated that he has been living with Gopilal and Birji Bai since he was five years old and they had, in fact, adopted him as their son. The defendant also pleaded that Gopilal and Birji Bai even performed his marriage and when Gopilal died, the last rites were performed by him. According to the defendant, Birji Bai had made an application on 1-5-1993 for mutation of the suit property in his name which was duly allowed by the Tehsildar vide order (Exh. P-5), and ever since then he is the owner and in possession of the suit property. The defendant further averred that Birji Bai had executed her first and last Will (Exh. P-5), in his favour which was also duly registered before the Sub-Registrar, Balaghat, in the presence of witnesses.

(3.) The Trial Court, by the impugned judgment dated 8-8-2008, decreed the suit of plaintiff by holding that since the defendant did not produce the original Will of which Exh. P-5 is a certified copy in the Court nor did he examine its attesting witnesses, the same was not trustworthy. The Trial Court has also held that Birji Bai being an illiterate woman always used to put thumb impression on the documents whereas, Exh. P-5, contains her signature and, therefore, it was forged. As regards the order (Exh. P-7), passed by the Tehsildar mutating the name of defendant in the revenue record, the Trial Court has held that the order is an outcome of illegal proceedings without the knowledge of Birji Bai. The Trial Court has also held that, if Birji Bai had executed a Will in favour of defendant there was no need for mutation of his name in the revenue record and likewise if the name of defendant had been mutated by the Revenue Court on the application of Birji Bai there was no