1.

This second appeal has been filed by the appellants/defendants

challenging the judgment and decree dated 24.06.2004, passed by 6^th

Additional District Judge (Fast Track Court) Rewa in Civil Appeal No.43-

A/04 whereby confirming the judgment and decree dated 28.01.2000,

passed by 5^th Civil Judge Class-II, Rewa, in Civil Suit No.225-A/1998

whereby the suit filed for declaration of 1/3rd share in the land survey

no.204 area 0.85 acre situated in village (Mauja) Padra was decreed.

2.

The facts in short are that, the land in question belonged to

deceased-Vindheshwari Prasad, who was succeeded by his wife Mst.

Sukhrajua (defendant 1) and two daughters Smt. Ramkali (defendant 2)

and Smt. Murtikumari (plaintiff). The defendants 3-5 are sons of

defendant 2-Smt. Ramkali. Vindheshwari Prasad died on 12.09.1988,

leaving behind him the land survey No.204 area 0.85 acre, situated in

Village (Mauja) Padra, Tehsil Huzur, Distrit Rewa. It is alleged in the

plaint that after death of Vindheshwari Prasad, the plaintiff and defendants

1-2 are having 1/3rd share each and the defendants 3–6 or any other person

have no right and Vindheshwari Prasad never executed any deed of

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transfer/agreement or Will. It is also alleged in the plaint that the husband

of defendant 2–Ramkali got a false and fabricated agreement (Ex.D-1)

prepared and thereafter, got fabricated a Will (Ex.D-2) and on that basis

tried to get the name of defendants 3–5 mutated over the land in question.

On inter alia allegations, the plaintiff prayed for declaration that she is

Bhoomiswami over 1/3rd share and in possession.

3.

The defendants 2–5 filed written statement denying the plaint

allegations and contended that Vindheshwari Prasad in his life time

executed a Will on 23.08.1988 in favour of defendants 3-5 and after death

of Vindheshwari Prasad, they are Bhoomiswami and in possession of the

land in question. It was also contended that neither the plaintiff nor

defendants 1–2 are owner or in possession and are not entitled for any

declaration. It was also contended that the suit land is a residential plot in

which two houses and boundary wall is constructed which are having

value of about Rs.9 lacs. Accordingly, it was contended that the suit has

not been valued properly and the learned Court has no pecuniary

jurisdiction.

4.

The defendant 1 also filed written statement admitting the plaint

allegations and contended that Vindheshwari Prasad never executed any

Will (Ex.D-2) in favour of defendants 3–5 nor executed any agreement/gift

deed (Ex.D-1), which is a fabricated document. After death of

Vindheshwari Prasad, his wife and two daughters i.e. plaintiff and

defendants 1-2 are entitled to succeed his property.

5.

The defendant 6–State despite service of summons, did not appear

and was proceeded exparte.

6.

The learned trial Court on the basis of pleadings of the parties

framed as many as 8 issues and recorded evidence led by the parties. After

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due consideration of the material available on record, learned trial Court

held that the plaintiff and defendants 1-2 are Bhoomiswami and in joint

possession of the land having 1/3rd share and it was held that the

defendants 3–5 are not entitled to succeed the property on the basis of Will

in question which has been found by learned Court to be a false and

fabricated document. In para 32, the learned trial Court held that the

plaintiff – Murtikumari and defendant-1 Smt. Sukhrajua are not in

physical possession but the defendants 2–5 are in physical possession and

at the end of the para, it was also held that the plaintiff and defendants 1-2

being co-owners, would be deemed to be in joint possession of the suit

property. Accordingly, ignoring the Will and Gift deed of the favour of

defendants 3–5, learned trial Court decreed the suit declaring the plaitiff to

be shareholder of 1/3rd share. Upon filing civil appeal, learned first

appellate Court affirmed the same, vide judgme