RAM GOPAL SHARMA Vs. MUNNI DEVI

JUDGEMENT

(1.) The appellant/plaintiff has filed this appeal under Section 100 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 7.12.2013 passed by the Court of ADJ, Ambah District Morena in Civil Appeal No. 5A of 2009, confirming the judgment and decree dated 21.1.2009 passed by the court of Civil Judge, Class I, Ambah District Morena in Civil Suit No. 36A of 2006 whereby, the suit filed by the plaintiff for declaration of title and permanent injunction was dismissed holding that the plaintiff has failed to prove the execution of the will (Ex. P/1) as per Section 68 of the Evidence Act, therefore, no right has been acquired by him in the property left by Ram Narayan. In this appeal, the appellant is referred to as "plaintiff" and the respondents as "defendants". The admitted facts of the case Aare that the land in disputed situated in village Kamtari Tehsil Ambah District Morena was of the ownership and in possession of Ramnarayan S/o. Prabhudayal. He was the father of defendant No. 1 and husband of defendant No. 2 and died on 10.6.2006.

(2.) The facts in brief of the plaint are that the 1/2 part of the land in dispute bearing Khasra Nos. 1620 area 0.26 Aare, 1627 area 0.43 Aare, 1635 area 0.44 Aare, 1638 area 0.45 Aare, 2191 area 0.27 Aare and 2992 area 0.26 Aare situated in village Kamtari (hereinafter would be referred to as "disputed land") was owned and possessed by Ramnarayan who died on 21.5.2005. During his life time, said Ramnarayan executed a notarized will in favour of the plaintiff on 21.4.2005 within the knowledge of the defendants and declared him his legal heir after his death. But the defendant No. 1 and 2 after death of Ramnarayan got the disputed land mutated in her name in the Khasra record on the basis of a will dated 24.11.2003. The said mutation was challenged by the plaintiff before SDO by filing appeal which is still pending. Now, in the garb of the said mutation, the defendants are trying to sell the disputed land left by the deceased and wanted to dispossess the plaintiff. Hence, the plaintiff filed a suit against the defendants for declaration of title to the disputed land, issuing injunction for restraining the defendants from alienating the disputed land and interfering in the peaceful possession of the plaintiff.

(3.) The defendants No. 1 and 2 by filing the joint written statement denied the plaint averments stating that deceased Ramnarayan executed a will dated 30.11.2003 in favour of the defendant No. 1. On the basis of the said will, the disputed land was got mutated in the name of defendant No. 1 by the revenue Courts. The plaintiff himself admitted the defendant Munni Devi to be legal heir in a case No. 13 of 2004 before Tehsildar. After death of Ramnarayan, the defendant No. 1 is in possession of the land and has been getting it cultivated. The plaintiff was never in possession of the disputed property and being son of the brother of the deceased, wanted to grab the land left by him in the garb of the forged will which was never executed in his favour. On the contrary, during his life time, the deceased himself executed a will dated 24.11.2003 in favour of the defendant No. 1 being his sole legal heir and since the suit filed by the plaintiff was based on the wrong facts, hence, it was prayed that the suit be dismissed.