Reportable/Non-reportable IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA ON THE 29^th DAY OF AUGUST, 2022 BEFORE HON'BLE MR. JUSTICE SATYEN VAIDYA REGULAR SECOND APPEAL NO.566 of 2011 BETWEEN:-

SHRI NIKKU RAM SON OF SHRI SAMUNDU, R/O VILLAGE SAI BRAHMANA PARAGA RATTANPUR, TEHSIL SADAR, DISTRICT BILASPUR (H.P.)

….APPELLANT/PLAINTIFF (BY MR. AJAY KUMAR, SENIOR ADVOCATE WITH MR.

ROHIT ADVOCATE.)

AND

1. SHRI BUDHI RAM (SINCE DECEASED)

THROUGH LEGAL REPRESENTATIVES:-

1(A)SMT. AJUDHIYA DEVI (WIFE)

1(B) SHRI PARKASH CHAND (SON)

1(C) SHRI KISHORI LAL (SON)

1(D)SMT. SARSWATI DEVI (DAUGHTER). ALL R/O VILLAGE DHABETA NEAR SWARGHAT, TEHSIL SRI NAINA DEVI JI, DISTRICT BILASPUR, H.P.

2. SHRI BHURI LAL SON OF SHRI SAMUNDU C/O SHRI NAROTAM DUTT, THROUGH LEGAL HEIRS:-

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2(A) SMT. DEVAKI SHARMA, WIFE OF LATE SH. BHURI LAL, 2(B) SH. DHEERAJ SHARMA S/O LATE SH. BHURI LAL, 2(C) SH. HARISH DEEP SHARM A SON OF LATE SH. BHURI LAL

2(D) SMT. KRTITI SHARMA D/O LATE SH. BHURI LAL, ALL RESIDENT OF VILLAGE ANJHI, P.O. KASUMPATI, TEH AND DISTT. SHIMLA, H.P.

3. SHRI MUNSHI RAM SO OF SHRI SAMUNDU, R/O VILLAGE SAI BRAHMNA PARAGA RATTANPUR, TEHSIL SADAR, DISTRICT BILASPUR, (H.P.).

4. SMT. DEO DEVI WIFE OF LATE SHRI SAMUNDU R/O VILLAGE SAI BRAHMNA PARAGA RATTANPUR, TEHSIL SADAR, DISTRICT BILASPUR, (H.P.).

….RESPONDENTS/DEFENDANTS.

(BY MR. BHUPENDER GUPTA, SENIOR ADVOCATE WITH MR.

JANESH GUPTA, ADVOCATE)

RESERVED ON: 25^th AUGUST, 2022.

DECIDED ON: 29th AUGUST, 2022.

This regular second appeal coming on for hearing this day, the Court passed the following: -

…3

J U D G M E N T

The appellant assails judgment and decree dated 28.09.2011 passed by learned District Judge, Bilaspur in Civil Appeal No. 22 of 2009, whereby the judgment and decree dated 30.04.2009 passed by learned Civil Judge (Senior Division), Bilaspur, in Civil Suit No. 106-1 of 2002u, dismissing the suit of the plaintiff was afÏrmed. o

2. CThe parties herein shall be referred by the same status as they held before the learned trial Court. The appellant herein is the plaintiff and respondents No.1 and 2 are the defendants and respondents No.3 and 4 are Hthe proforma defendants.

3. Plaintiff filed a suit seeking declaration to the effect that plaintiff and proforma defendants were owner in possession of the suit land on the basis of Will dated 16.03.1999 executed by late Shri Samundu with further declaration to declare the Will dated 03.04.1999 of Shri Samundu as null and void on the ground that Shri …4 Samundu did not execute the said Will with free mind or without pressure. A decree of permanent prohibitory injunction was also sought against the defendants from causing any interference in the suit land and the house situated thereon. In the alternative a decree of possession, in case of dispossession of the plaintiff during the pendency of thue suit was also prayed for.

4. As oper plaintiff, late Shri Samundu was father of plainCtiff, defendants No.1 to 3 and husband of proforma defendant No.4. Defendant No.2 was stated to be son of late Shri Samundu from his second wife Smt. Devo i.e. proforma defendant No.4. Plaintiff, defendants HNo.1 and 3 were stated to be the sons of late Shri Samundu from his first wife namely Smt. Durgi. Plaintiff claimed that late Sh. Samundu had executed a Will dated 16.03.1999 bequeathing his properties in favour of plaintiff and proforma defendants. The Will was also claimed to be registered with Sub Registrar, Bilaspur, on the same day i.e. on 16.03.1999. The plaintiff also …5 averred that the original Will executed by late Shri Samundu on 16.03.1999 was destroyed by defendant No.1 by putting the same on fire. Plaintiff could retrieve some burnt pieces of the document.

5. According to the plaintiff, the defendants got mutation No.256 attested after death of Shri Samundu on 25.01.2001 on theu basis of another Will dated 03.04.1999 allegedly execouted by late Sh. Samundu. The Will dated 03.04.19C99 was alleged to be result of fraud, mis- representation and undue influence. Plaintiff pleaded the date of