SMT. UPASNA GUPTA Vs. GIRISH CHANDRA GUPTA

JUDGEMENT

(1.) Present appeal is filed by the appellant/plaintiff against the judgment and decree dtd. 28/11/2016 passed by the learned First Additional District Judge, Bilaspur in Civil Suit No.1A/2013 whereby the suit preferred by the appellant/plaintiff was dismissed.

(2.) (a) Brief facts of the case are that the appellant/plaintiff filed a suit interalia stating that the suit house bearing No. C-346 (New Number203) situated at Mouja Juna Bilaspur, Krishna Nagar Ward No. 27, Bilaspur area 55 x 27 = 3500 sq.ft. which is surrounded by four corners namely by house of Santsoh Sharma in the north, Road in the South, house of Late Adhari Lal Soni in the East, as Gend Ram Sao Marg in the west. The suit house was owned by the testator-Late Atmaram Gupta who died on 3/12/2004. The suit house was constructed by Late Atmaram Gupta who resided over there till his life time. It is pleaded that late Atmaram Gupta had executed a registered WILL dtd. 28/11/2003 in favour of the plaintiff with respect to the suit house and agricultural land situated at village Mouja Lagra PH. No. 18 R.I. Circle Bilaspur, Tahsil and District Bilaspur. It was further pleaded that after the death of Atma Ram Gupta, the plaintiff became owner of the suit house and came into possession of the same. The defendant No.1 Girish Chand Gupta was residing separately during the life time of Atmaram Gupta and was residing at Narmada Nagar, Bilaspur and never resided in the suit house. It was further pleaded by the plaintiff that when the dispute arose between the parties on the issue of execution of WILL, the appellant/plaintiff filed a civil suit bearing No. 34-A/2010 in the Court of 8th Civil Judge, Bilaspur however, the plaint was rejected under Order VII Rule 11 CPC and presently appeal is pending before the Vth Additional District Judge, Bilaspur.

(3.) (a). After service of summons upon the defendants, the defendant No.1 filed his written statement and denied the plaint averment and submitted that the suit house is situated over a part of abadi bhoomi at Juna Bilaspur, bearing Khasra No.12, admeasuring 24.924 hectare. It was stated the suit house exists from the time of their grand father/great grand father. It was denied that the testator-late Atmaram Gupta alone was the exclusive title holder of the suit house to bequeath it by WILL and the defendants No.1 and 2 are title holder in possession of the suit house since their birth. The execution of WILL dtd. 28/11/2003 by Atmaram Gupta was also denied and it was submitted the family settlement deed dtd. 12/5/1997 was suppressed and plaintiff himself has prepared the WILL dtd. 28/11/2003 and obtained signature of the testator-Atmaram Gupta over the WILL forcefully. It was stated the language of the WILL reflects that it was not prepared in a single sitting but the same was prepared after taking sufficient time after consideration of the various aspects. It was stated the testator-Late Atmaram Gupta was not having good health and was suffering from diabetes and was in weak mental condition at the time of execution of WILL. The WILL is also challenged on the ground that the witnesses to the WILL were the brother of the appellant/plaintiff and his friend as such were interested witnesses.