CAV Judgment

Heard on I.A. N. 06/2023, an application under Section 100(5) of the Code of Civil Procedure, 1908 for framing of additional substantial question of law.

2. Ms. Sameeksha Gupta, Advocate submits that she does not want to press this application. The same is dismissed as not pressed.

3. Appeal is heard finally.

4. This appeal under Section 100 of the Code of Civil Procedure, 1908 is arising out of the judgment and decree dated 30.09.2010 in Civil Appeal No. 07-A/2009 passed by the learned Additional District Judge Sarangarh, District Raigarh (CG) arising out of the judgment and decree dated 31.03.2009 in Civil Suit No. 124-A/2006 passed by the learned Civil Judge Class-II, Sarangarh, District Raigarh. The appeal was admitted by this Court on 14.01.2021 on the following substantial question of law:

“Whether the first Appellate Court is justified in holding that the plaintiff has proved the execution and attestation of the will executed on 23.05.2000 by Parkhit in favour of the plaintiff under Section 63(c) of Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872, by recording a finding which is perverse to the record?”

5. The parties shall be referred as per the status before the trial Court. Plaintiff has filed a civil suit against the defendant for declaration of his title and confirmation of possession in respect of the land comprising Khasra Nos. 590/2 Rakba 0.202, Khasra No. 606/1, Rakba 0.287, Khasra No. 625/1 Rakba 0.243, Khasra No. 628/3 Rakba 0.093, Khasra No. 654 Rakba 0.312, Khasra No. 619/1 Rakba 0.105,Khasra No. 634/1 Rakba 0.227,Khasra No. 645/2 Rakba 0.065, Khasra No. 650/2 Rakba 0.283, Khasra No. 653/1 Rakba 0.121, Khasra 659 Rakba

0.316 and Khasra No.

623/3d Rakba 0.231 situated at village Kharwani Bade, Tahsil Sarangarh, District Raigarh (for short ’the suit land’). As per pleading of the plaint, deceased Parkhit had three daughters and one son and he was having the suit land in his exclusive possession. The marriage of the daughters was performed by him about 30-27-24 years ago respectively and also gave cash, jewelry, household articles and other properties to the daughters in marriage and they are residing in their matrimonial home peacefully. The plaintiff being the son of Parkhit, was taking care of him and on account of that a will deed dated 23.05.2000 was executed by deceased Parkhit in fit state of mind, without any pressure, coercion or undue influence. The plaintiff filed the suit against three daughters and the wife of deceased Parkhit (mother of the plaintiff). The further pleading of the plaintiff is that on 15.05.2001, the defendant No. 1 to 3 executed a consent deed on stamp paper of Rs.50/- and admitted that the plaintiff is the sole owner and possession holder of the suit land and there is no right of them over the suit property therefore the defendants are bound by principle of estoppel. On the basis of the will deed, the plaintiff is the sole title and possession holder of the suit land. On the basis of the will deed and consent deed, the plaintiff has recorded his name in the revenue records. The defendants No. 1 to 3 filed appeal against the order of mutation in favour of the plaintiff before the Sub Divisional Officer, Sarangarh and the mutation order was passed in favour of defendants No. 1 to 3 recording their names in the revenue record therefore the suit was filed. The summons of the suit was issued to the defendants and they have entered their appearance. The defendants No. 1 to 3 in their statement denied the averments of the plaint and denied that the alleged will deed was not executed by deceased Parkhit rather the plaintiff has prepared a forged will deed. The further pleadings of the defendant No.1 to 3 during the proceedings before the revenue court was that the plaintiff has neither filed the will deed nor any fact with regard to the will deed was disclosed to the two courts. After the order was passed in favour of defendant No.1 to 3 by the r