The burden of proof in a suit for declaration of title lies with the plaintiff, who must prove the will's execution as per statutory requirements.

Hon'ble Rajnish Kumar,J.

1. Heard Shri R.D. Shahi, learned counsel for the appellant and Shri Prem Shankar Shukla, learned counsel for the respondent.

2. This second appeal has been filed assailing the judgment and order dated 09.10.2014 passed in Civil Appeal No.158 of 2014; Kusum Dasi Vs. Awadhesh Das and Another by Additional District Judge, Court No.1, Faizabad, by means of which the appeal has been allowed and the judgment and decree dated 30.05.2014 passed in Regular Suit No.192 of 1978; Sri Thakur Sanatan Ram Yugal Sarkar Virajman Mandir Maibara and Another Vs. Lalita Dasi by Civil Judge (Senior Division), Faizabad has been set aside and the suit of the plaintiff-appellants for declaration and possession has been dismissed.

3. This second appeal was admitted on the following substantial questions of law:-

• "1. Whether the learned first appellate court erred in law in observing that the will deed dated 26.09.1969 was not proved despite the execution of the same being duly admitted by D.W.1 and D.W.2 making the will deed admissible under Section 70 of the Indian Evidence Act?

2. Whether the learned courts below erred in law in placing burden of proof upon the appellants though as per the law of the land when both the parties have led the evidence, the burden of proof looses its significance?"

4. Learned counsel for the plaintiff-appellants submitted that the appellant had filed suit for permanent injunction on the basis of registered will deed dated 26.09.1969 executed by Ram Rati Dasi in favour of Janki Dasi. During pendency of the suit, the suit was amended and the prayer for declaration and possession. and eviction of defendant-respondent was made. The will deed dated 26.09.1969 was duly proved and execution of the same was also admitted by the D.W.1 and D.W.2, therefore the same was proved as per Section 69 and 70 of the Indian Evidence Act and considering the same, suit of the appellant-plaintiff was decreed by the Trial Court, but the Appellate Court without considering the same allowed the appeal and set-aside the judgment and decree passed by the Trial Court which could not have been done. He further submitted that the respondents were claiming rights on the basis of an unregistered will dated 28.06.1978 executed by Ram Rati Dasi, whereas she had died on 28.08.1976. Thus, the submission is that the judgment and order passed by the Appellate Court is not sustainable in the eyes of law and liable to be set-aside. He relied on Sampath Kumar Vs. Ayyakannu and Another ; (2002) 7 SCC 559 , Babu Singh and Others Vs. Ram Sahai alias Ram Singh ; (2008) 14 SCC 754 & M.B. Ramesh (D) by LRs. V. K.M. Veeraje Urs (D) by LRs. and Others; AIR 2013 SC

2088.

5. Per contra, learned counsel for the respondent-defendant submitted that it is not in dispute that the Ram Rati Dasi was the founder of the temple namely Sri. Thakur Sanatan Ram Yugal Sarkar Virajman Mandir Maibara and that she had died on 28.08.1976. However he submits that the suit for permanent injunction was filed on the basis of falls and concocted cause of action by an impostor lady namely Janki Dasi on the behest of Lal Das. He further submitted that the Lal Das, who was a hooligan of Ayodhya and trying to capture the temple in question, had also got executed a document from Janki Dasi appointing him as Sarvarakar. However, when he could not succeed in his illegal design to capture the temple, the suit was amended admitting the possession of the respondent-defendant and the prayer for declaration and possession was added.

6. He further submitted that since the will deed dated 26.09.1969 was the basis of the suit filed by the appellant-plaintiffs, therefore the same was required to be proved as per Section 90A which was added by the U.P. Amendment and the presumption provided under Section 90 of the Indian Evidence Act is not available. He further submitted that the will was required to be proved in accordance with Section 63 of the Indian Succession Act an

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