- (1.) Heard Shri Manish Chandra Tiwari, learned counsel for the petitioner and Shri Vatsal Srivastava appearing for respondent No. 6. Facts, in brief, giving rise to the present dispute are as under. Respondent No. 6 herein filed a suit under Section 229B of the U.P. Zamindari Abolition & Land Reforms Act seeking declaration of her rights in the land in dispute on the basis of a Will said to have been executed by her father, late Lakhi Ram, who was the recorded tenure holder. Suit was contested by the predecessor-in-interest of the petitioner by filing written statement denying the plaint allegation and alleging that Will was forged and fabricated. He claimed rights under Section 171 of the U.P. Zamindari Abolition & Land Reforms Act, being the brother of the deceased recorded tenure holder Lakhi Ram. Trial Court vide judgment and decree dated 31.5.2006 dismissed the suit. Appeal filed by the respondent No. 6 was allowed and second appeal filed by the petitioner was dismissed by the Board of Revenue. Trial Court finding that plaintiff has failed to prove the Will in accordance with the provisions of Section 68 of the Evidence Act as well as Section 63 of the Indian Succession Act, inasmuch as one of the attesting witness, namely, Sattu produced by her to prove the attestation of the Will, did not depose in his statement that testator has signed the Will in his presence and he and the other attesting witness signed in presence of the testator. Trial Court has also placed reliance on an affidavit filed by one of the attesting witness, namely, Islam in mutation proceedings that his and Sattu's signatures were obtained on a blank paper on the plea that their evidence was required as witness in the mutation proceedings. Lower appellate Court reversed the findings recorded by the trial Court and allowed the appeal on the ground that attestation of the Will stood duly proved by evidence of Sattu. The same findings have been affirmed by the Board of Revenue while dismissing the second appeal.
(2.) It has been urged by the learned counsel for the petitioner that since the attesting witness Sattu did not state in his deposition that the testator of the Will signed in his presence and in presence of the other attesting witnesses and that the two attesting witnesses put their signatures on the Will in the presence of the testator and, as such, the attestation of the Will is not established as provided by Section 63 of the Succession Act and Section 68 of the Evidence Act and the lower appellate Court as well as the Board of Revenue has committed manifest error of law in recording the finding that the attestation of the Will was duly proved.
(3.) In reply, it has been contended that the lower appellate Court after analysing the deposition of Sattu, one of the attesting witness has recorded a finding of fact that the attestation of the Will was duly established and the said finding has been affirmed in the second appeal and the findings of fact based on appraisal of evidence is not liable to be interfered by this Court in writ jurisdiction.;