'REPORTABLE'

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4456 OF 2016

(Arising out of SLP (Civil) No. 16486 of 2015)

PAWAN KUMAR PATHAK ... Appellant

VERSUS

MOHAN PRASAD ... Respondent

WITH

SLP(C) No. 19336-19337/2015

S.L.P.(C)...CC No. 19118/2015

J U D G M E N T

A. K. SIKRI, J.

Civil Appeal No. 4456 of 2016

(Arising out of SLP (Civil) No. 16486 of 2015)

Leave granted.

We have heard the matter finally at this stage itself

with the consent of counsel for the parties because short

issue relating to the admissibility of the evidence which was

to be produced by the appellant before the trial court is

involved.

The appellant herein had filed a suit in the court of

Additional District Judge, Gwalior, Madhya Pradesh, which is

registered as Case No. 5A of 2007.

1

Digitally signed by

NIDHI AHUJA

Date: 2016.05.03

17:30:17 IST

Reason:

Signature Not Verified

C. A. No. 4456/ 2016 etc.

The foundation laid to claim the aforesaid reliefs as

per the averments of the plaint is that the appellant is the

son and only legal heir of Hira Lal and Kesar Devi, both of

whom have died intestate. It is further stated that Hira Lal

had a brother named Mahadev Prasad and both these brothers

were having agricultural land situated in Municipal

Corporation of village Gospura bearing area number 23, survey

number 1906, area 2 bigha 11 biswas, land survey number 1897,

area 1 bigha 15 biswas, survey number 1898, area 2 bigha 7

biswas, survey number 1904, area 1 bigha 16 biswas, survey

number 1907, area 3 bigha 12 biswas, which was purchased by

the two brothers jointly from various sellers. It is further

stated that after the demise of Hira Lal and Mahadev Prasad

as well as wife of Mahadev, the appellant is the only legal

heir who has right to inherit the aforesaid properties

inasmuch as Mahadev Prasad died issueless. It is further

claimed that the respondent herein has no right or concern in

any manner whatsoever, in the aforesaid properties which was

left by deceased Hira Lal and Mahadev Prasad.

In paragraph 5, the following averments are made to

this effect:

“5. That despite of the fact that defendnt Ram Kishan

Dubey has stated that any document is executed by

Hira Lal and Mahadev Prasad no document is executed

by Hira Lal, Mahadev Prasad, Kesar Devi or Shanti

Devi in favour of Ram Kishan Dubey and nor there was

any need to execute the same because their only son

plaintiff was alive and he is adhibhashit being in

capacity of owner and possessory title holder of all

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C. A. No. 4456/ 2016 etc.

the properties left by Hira Lal and Mahadev Prasad.”

In the said suit the following reliefs are prayed: -

“a. That it is to be declared that sole owner and

possessory title holder of all the properties left by

late Hira Lal and late Mahadev Prasad is plaintiff

being sole successor.

b. Permanent injunction is to be passed on this basis

that defendant should not transfer any part of the

property left by deceased Hira Lal and Mahadev Prasad

and should not create any obstruction in the use and

utilization of the plaintiff, status quo is to be

maintained.

c. Litigation expenses of the case is to be provided

to the plaintiff from defendant.

Any other

justifiable relief which Hon'ble Court deems fit and

proper is to be provided to the plaintiff from the

defendant.”

The respondent herein filed written statement and

contested the aforesaid suit filed by the appellant. The

respondent denied that the appellant was the son of Hira Lal.

He had even moved an application for conducting DNA test of

the appellant in order to prove that the appellant was not

the son of Hira Lal. This application was contested by the

appellant and dismissed by the trial court.

Thereafter, the appellant moved an application for

amendment of the plaint, under Order VI Rule 17 of the Code

of Civil Procedure taking a spec