RAJARAM Vs. LAXMAN

JUDGEMENT

(1.) This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 30.10.2001 passed by 4th Additional District Judge, Vidisha in Regular Civil Appeal No. 27- A/2001 thereby affirming the judgment and decree dated 19.03.2001 passed by 1st Civil Judge, Class-II, Vidisha in Civil Suit No. 20- A/1997.

(2.) The necessary facts for the disposal of the present appeal in short are that the original plaintiff Rajaram (who expired during the pendency of this appeal and the present appellants are his legal representatives) filed a suit for declaration of title and permanent injunction. His case was that Prabhulal had five sons. The plaintiff Rajaram and the defendant No. 2 Babulal are the sons of Prabhulal. Another son Narayan Singh has expired. Fourth son Hukum Singh was already given in adoption and the fifth son Ramcharan has renowned the world. The defendant No. 1 is a minor son of the defendant No. 2. It was pleaded that Narayan Singh has died issueless and he was the owner of agriculture land bearing Survey No. 314 min area 0.113 hectare and Survey No. 651/1 area 0.481 hectare situated in village Atarikhejda, Tahsil Gyaraspur, District Vidisha. As Narayan Singh was unmarried and has died issueless, therefore, the plaintiff as well as defendant No. 2 have equal share in his property. It was further pleaded that as Narayan Singh was not keeping well, therefore, taking advantage of the same, a forged Will dated 07.02.1995 was got prepared by the defendant No. 2, which was in fact antedated, by which the property was bequeathed by Narayan Singh in favour of the defendant No. 1 and it was claimed that since the Will dated 07.02.1995 was a forged and concocted document, therefore, the defendant No. 1 does not get any title by virtue of the Will in question. It was further pleaded that Narayan Singh was jointly looked after by the plaintiff and defendant No. 2. The plaint was later on amended and it was pleaded that in the light of the order dated 31.03.1997 passed by SDO, Vidisha, the defendants No. 1 and 2 have forcibly taken possession of the disputed property and thus, relief for possession as well as mesne profit @ Rs.500/- was also incorporated.

(3.) The defendants No. 1 and 2 filed their written statement and claimed that Narayan Singh was having Survey No.651/1/1 area 0.481 hectares and Survey No. 314 min area 0.112 hectare. It was further admitted that Narayan Singh was unmarried. It was further pleaded that Narayan Singh had executed a Will dated 10.11.1995 in the presence of the respected members of the Society in favour of the defendant No. 1 and from thereafter the defendant No. 1 is the owner and title holder of the property in dispute. It was further denied that the Will is forged or concocted document. It was specifically pleaded that in fact, Narayan Singh had executed the said Will. It was further pleaded that Narayan Singh was residing with the defendant No. 2 for the last 25 years and it was the defendant No. 2 who was looking after Narayan Singh. Even the last rites were performed by the defendant No. 2. It was further denied that the defendants had ever taken forcible possession, but it was pleaded that the defendants are in possession of the land right from the very beginning and thus, it was prayed that the suit be dismissed.