RATAN SINGH Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 12.8.2010 passed by the 1st Additional Judge to the Court of 5th Additional District Judge (Fast Track Court), Chhindwara in Civil Appeal No. 54 -A/2009 by which an appeal preferred by the appellant against the judgment and decree dated 24.11.2008 in Civil Suit No. 23 -A of 2008 by 3rd Civil Judge Class -II, Chhindwara was dismissed. Both the Courts below have found that the appellant could not prove the Will allegedly bequeathed by Savitri Bai. It is also held that the appellant could not prove that he was an adopted son of Savtri Bai. On the basis of aforesaid findings, the trial Court dismissed the suit which was an exparte judgment. The appellate Court also re -appreciated the evidence and found that the Will was not proved and that he was an adopted son of Savtri Bai. The appellate Court also found that the suit was barred by principle of res judicata because similar point was raised in Civil Suit No. 70 -A/1991 which was dismissed on 10.7.1997. An appeal preferred against the same judgment and decree was also dismissed. The appellant herein concealed this fact from the trial Court that an earlier suit raising similar issue between the appellant and Champalal was already dismissed in which no right of the appellant in the property was found. Considering the aforesaid, the appeal preferred by the appellant was also dismissed. Learned counsel appearing for the appellant submitted that there was an exparte judgment and decree against the respondent. The evidence adduced by the appellant was not controverted then it was the duty of the Court to see that the plaintiff's case was proved or not. The appellant has placed reliance to a Division Bench's judgment of this Court in Nagar Palika Nigam Gwalior Vs. Motilal Munnalal, AIR 1977 M.P. 181 and submitted that this appeal may be admitted.

(2.) In Motilal Munnalal (supra), the question was entirely different. In that case, the question was whether an appeal preferred against exparte judgment and decree can be converted into proceedings for setting aside exparte judgment and decree. The Division Bench also held that it is duty of the Court to see whether plaintiff has proved the case or not. But in the present case, the entire scenario is different. The appellant had claimed himself to be an adopted son of Savitri Bai and also claimed the disputed property on the basis of Will. But both these facts could not be proved in the Courts below. After due appreciation of evidence, both the Courts below have recorded the findings that the appellant could not prove alleged Will dated 9.4.1976 and also his adoption by Savitri Bai. These are concurrent findings of facts recorded by the Courts below, in which, in absence of any perversity or illegality, no interference can be warranted. The Courts below after due appreciation of evidence and consideration of the Will have recorded a finding that the aforesaid Will was not proved. The appellant has also not proved his adoption. Apart from this, dismissal of the earlier suit was also concealed by the appellant. In view of aforesaid, no substantial question of law is involved in this appeal for consideration. This appeal is found without merits and is dismissed at admission stage with no order as to costs.