IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE rd ON THE 3 OF NOVEMBER, 2023 MISC. PETITION No. 1091 of 2023 BETWEEN:-

1. ASHOK SINGH S/O SHRI GORE SINGH KUSHWAH, AGED ABOUT 56 YEARS, OCCUPATION: AGRICULTURIST, R/O GRAM BARAKALAN DISTRICT BHIND (MADHYA PRADESH)

2. HARI SINGH S/O GAJIPAL SINGH, AGED ABOUT 78 YEARS, OCCUPATION: AGRICULTURIST, R/O GRAM BARAKALAN, DISTRICT BHIND (M.P)

.....PETITIONER (BY SHRI SARVESH KUMAR SHARMA - ADVOCATE )

AND

1. YASHPAL SINGH S/O SHRI UDAYBHAN, AGED ABOUT 48 YEARS, GRAM GADI PRATAPPURA KUKAPUR (UTTAR PRADESH)

2. JANGBAHADUR SINGH THROUGH VARISAN (1)

MUS. SHIMMI DEVI W/O JANG BAHADUR, AGED ABOUT 44 YEARS, GADHI PRATAP PURA KOOKAPUR (UTTAR PRADESH)

3. JANGBAHADUR SINGH THROUGH VARISAN (2)

KU SHAILI D/O JANGBAHADUR, AGED ABOUT 21 YEARS, GADHI PRATAP PURA KOOKAPUR (UTTAR PRADESH)

4. JANGBAHADUR SINGH THROUGH VARISAN (3)

SHIVPRATAP S/O JANGBAHADUR, AGED ABOUT 19 YEARS, GRAM GADHI PRATAPPRA KOOKAPUR (UTTAR PRADESH)

5. JANGBAHADUR SINGH THROUGH VARISAN (4)

NAMAN S/O JANGBAHADUR, AGED ABOUT 19 YEARS, GADHI PRATAP PURA KOOKAPUR (UTTAR PRADESH)

Signature Not Verified

6. JAGPAL SINGH S/O UDAYBHAN, AGED ABOUT 41 YEARS, GADHI PRATAP PURA KOOKAPUR (UTTAR PRADESH)

7. LALU SINGH S/O UDAYBHAN, AGED ABOUT 38 YEARS, GRAM GADHI PRATAPPRA KOOKAPUR (UTTAR PRADESH)

8. COLLECTOR MP GOVT BHIND (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI )

This petition coming on for admission this day, the court passed the following:

ORDER

1. The present petition under Article 227 of the Constitution of India is directed against the order dated 9.2.2023 passed by Second Civil Judge, Senior Division, Bhind in Civil Suit No.43A/2014, whereby two applications; one under Order 18 Rule 7 of CPC and another under Order 13 Rule 10 of CPC preferred by the petitioners/defendants were rejected.

2. Short facts of the case are that the present respondents no.1 to

4 had preferred a suit seeking declaration and permanent injunction along with possession against the petitioners/defendants on the basis of a Will. In the plaint it was averred that the deceased Surajkunwar Bai was living along with them in District Agra (U.P.) for last 20 years and on 1.1.2011 the suit property situated at Village Barakalan, District Bhind was bequeathed in their favour and on the basis of the aforesaid will the declaration was sought for declaring them to be the owners and bhumiswami of the land and as the petitioners/defendants had dispossessed them, possession be handed over to them.

3. A written statement is filed in the matter on behalf of the Signature Not Verified petitioners/defendants, wherein it was alleged that the Will on the basis of which the declaration is sought is forged and fabricated and as their aunt/grandmother was not having any children, she use to live along with them at Village Barakalan, District Bhind and till her death on 18.7.2011 she was residing at Village Barakalan. It was further contended that as Surajkunwar Bai had expired at Village Barakalan the petitioners/defendants being Class I legal heir had cremated her and had performed the last religious rites and the story which has been cooked up by the respondents/plaintiffs is false and thus prayed for dismissal of the present suit.

4. During the course of the trial the present petitioners/defendants submitted one application under Order 18 Rule 19 CPC that medical certificate Ex.P.1 on the basis of which the death certificate of Suraj Kunwar Bai had been prepared, the name of her husband was mentioned as Kalyan Singh and the death certificate later-on prepared bears the name of Kayam Singh as husband of Suraj Kunwar Bai which goes to show that the same was prepared under some conspiracy, and therefore, it was required to call the plaintiff's witness Yashpal Singh for his re-examination. Another application under Order 13 Rule 10 CPC was submitted by the petitioners/defendants to call the original record of the bank as in the pass book of Canara Bank Ex.P.2 the nam