TOP SINGH Vs. SUNDAR SINGH

JUDGEMENT

(1.) THIS is plaintiffs Second Appeal under section 100 of the Code of Civil Procedure against the judgment of affirmance. Plaintiffs filed the suit for rendition of account in respect of 62.67 acres of land between the period 1971 to 1974 and decree for their share. Additional Civil Judge, Class II, Bemetra, by his judgment and decree dated 6.10.1982 passed in CS. No. 136 -N80 dismissed the suit. Plaintiffs aggrieved by the same preferred appeal and the 3rd Additional District Judge, Durg, Camp. Bemetra, by his judgment and decree dated 20.11.1987, passed in Civil Appeal No. 6 -A/1973, dismissed the appeal, Plaintiffs aggrieved by the same have preferred this appeal and by order dated 6.7.1988, appeal has been admitted on the following substantial question of law :

(2.) TRIAL Court on the basis of the pleadings of the parties framed various issues and on consideration of the materials held that the plaintiff cannot maintain the suit for the relief claimed. It also dismissed the suit on merits. It is relevant here to state that plaintiff Top Singh filed this suit on the basis of a Will purportedly executed by Bulaurin Bai and the Trial Court on consideration of the materials found the said Will to be forged and fabricated document. Lower appellate Court in appeal has reversed the finding of the trial Court as regards to the validity of the Will, but concurred with its conclusion that the suit is not maintainable.

(3.) IN support of his submission, he has placed reliance on a Division Bench Judgment of the Punjab and Haryana High Court in the case of Smt. Harbir Kaur and Anr. v. Charan Singh Tiwari and Ors., AIR 1934 P&H 195. In the aforesaid case, the Division Bench on consideration of the various authorities of different High Courts, preferred to take the view in conformity with the view of the Bombay High Court and it differed with the proposition of law propounded by the Patna High Court in the case of Nand Kishore Prasad Singh and Anr. v. Parmeshwar Prasad Singh and Ors. AIR 1935 Patna 80 and Udekar v. Chandra Shekhar Sahu and Ors. AIR 1961 Orissa 111.