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CHHATTISGARH HIGH COURT
Bibhu Datta Guru, J.
Rampyare and Anr. – Appellants
versus
Ramkishun and Anr. – Respondents
SA No. 183 of 2021
Decided on 29.1.2026
(A) Indian Succession Act, 1925 – Section 63 – Indian Evidence Act, 1872 – Sections 90 and 91 – Suit seeking declaration of title, possession and permanent injunction – Appeal by unsuccessful appellants/plaintiffs – Principal basis for claiming title over suit land is stated to be a 30-years’ old Will – Said Will has not been duly proved by appellants through witnesses in accordance with provisions of Section 63 of Indian Succession Act and Sections 68 and 69 of Indian Evidence Act – Presumption contemplated under Section 90 of Indian Evidence Act in respect of documents more than 30 years old does not apply to a Will, as a will is required to be proved by strict compliance with statutory provisions governing its execution and attestation – Merely on the ground that Will is a 30-year-old document, it cannot be presumed to have been duly executed under Section 90 of Indian Evidence Act – It is mandatory that Will be proved by attesting witnesses in compliance with statutory provisions – Appellants failed to raise any substantial question of law which is required under Section 100 of CPC – Appeal dismissed. (Paras 9, 10, 13, 19 and 20)
(B) Civil Procedure Code, 1908 – Section 100 – Second Appeal – Scope of interference in a Second Appeal under Section 100 of Code of Civil Procedure is extremely limited – Interference is permissible only when appeal involves a substantial question of law – Concurrent findings of fact recorded by both Courts cannot be interfered with unless such findings are shown to be perverse, based on no evidence, or contrary to settled principles of law – When there is concurrent finding of fact, unless it is found to be perverse, Court should not ordinarily interfere with said finding. (Paras 14 and 17)
Result: Second Appeal dismissed.
JUDGMENT (ON BOARD)
By the present appeal under Section 100 of the CPC, the appellants/plaintiffs challenging the impugned judgment and decree dated 01/01/2020 passed by the learned 1st Additional District Judge, Manendragarh, District Korea, C.G. in Civil Appeal No.30A/2019 (Rampyare & Anr Vs. Ramkishun & Anr) arising out of the judgment dated 19/07/2016 passed by the learned Civil Judge Class-I, Manendragarh, District Korea, C.G. in Civil Suit No.48A/2016 (Rampyare & Anr Vs. Ramkishun & Anr) whereby the learned appellant Court dismissed the appeal and affirmed the judgment passed the learned trial Court. For the sake of convenience, the parties would be referred as per their status before the learned trial Court.
2. The plaintiffs preferred a suit seeking declaration of title, possession and permanent injunction pleading inter alia that the plaintiffs’ grandfather, Mahadev, son of Late Amrit Ahir, executed a will on 12/08/1958 and got it registered on 28/11/1958 in the office of the Sub-Registrar, Manendragarh, thereby bequeathing his land ownership rights, i.e., the suit land, to Ramavatar Ahir, son of his younger brother Jagdev Ahir. Jagdev had two sons, Ramavatar and Ramkishun. The wife of Ramavatar is Sukharana and his sons are Rampyare and Shivshankar. Mahadev, Jagdev, and Ramavatar have all passed away. After the death of Jagdev, Ramavatar, along with his sons Rampyare and Shivshankar, started living with Mahadev and used to serve him and cultivate his land. Mahadev died on 06/10/1988. Thereafter, in accordance with the will, Ramavatar got his name mutated in the revenue records. Upon the death of Ramavatar on 25/07/1998 (sic 25/07/1958) (Ex.P/4 is death certificate), the plaintiffs came into possession of the suit land as owners and got their names recorded in the revenue records. Defendant No. 1 is the real uncle of the plaintiffs, who, without any right, in collusion with revenue officers and employees, got his name recorded in the suit land along with the plaintiffs, without their knowledge and consent. In the year 2007–08, defendant No.1, Ramkishun, forcibly took possession of the suit land and is preparing to harvest the crops sown by him.
3. In the said Civil Suit, the defendant submitted his written statement and denied the plaint averments. He submitted that Amrit Ahir had two sons, namely Mahadev and Jagdev. The property of Amrit Ahir had already been partitioned between Mahadev and Jagdev, and both were in cultivating possession of their respective shares. Mahadev had only one daughter and no male issue; therefore, after the death of Mahadev, the lawful heirs to his property were Ramavatar and Ramkishun. After Mahadev’s death, his property was partitioned between Ramavatar and Ramkishun, and both came into possession of their respective equal shares as owners and cultivators. Mahadev had no son as his heir; therefore, he used to live in the same house with his younger brother Jagdev, and the entire agricultural land was cultivated by the sons of Jagdev. Mahadev had no separate house. Mahadev was served by all the sons of Jagdev. After the death of Jagdev, the entire ancestral property was mutually partitioned between Ramavatar and Ramkishun, and each remained in possession of his respective share as owner and cultivator. Mahadev never executed any will during his lifetime in favour of the plaintiffs’ father, Ramavatar. The alleged will is forged and fabricated. Mahadev treated both sons of his brother Jagdev equally and had no special affection towards any one of them. The entire ancestral property situated at Village Paradol was, in fact, partitioned between Ramavatar and Ramkishun after the death of Mahadev and Jagdev, and both brothers remained in possession of their respective shares as owners and cultivators. However, the names of both brothers were recorded jointly in the revenue records. After the death of Jagdev, Defendant No. 1 has been in possession of the suit land as owner. When Jagdev and Mahade
(1) Presumption contemplated under Section 90 of Indian Evidence Act in respect of documents more than 30 years old does not apply to a Will.(2) Second Appeal – Scope of interference in a Second Appe....
A will must be proven in accordance with statutory requirements; the presumption for documents over 30 years old does not apply to wills under Indian law.
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The presumption under Section 90 of the Indian Evidence Act does not apply to Wills, necessitating proof of execution and attestation by the propounder.
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