- (1.) POONAM Srivastava, J. Heard Sri B. K. Narayana, learned Counsel for the appellants and Dr. Dwivedi learned Senior Advocate assisted by Sri Satish Chandra, Advocate, appearing for the plaintiff/respondents.
(2.) THIS is the defendant's second appeal arising out of the judgment and decree dated 4-10-2006 passed by the Special Judge (E. C. Act)/additional District Judge, Jhansi allowing the plaintiff's appeal No. 64 of 2000, Satish Chandra & Anr. v. Lathwarwali & Ors. , reversing the judgment and decree dated 7-7-2000 passed by the Additional Civil Judge (Senior Division) Jhansi. The plaintiffs instituted an original suit No. 310 of 1992 for declaration as owners in possession of one house situated in Mohalla Bazar, Ward No. 3, Qasba Gursarai, Tehsil Garautha, District Jhansi, hereinafter referred to as the disputed property and also that the alleged Will dated 20-1-1983 executed by late Gopi Nath in favour of the defendant/appellants be declared null and void and also that the plaintiffs were entitled to receive rent of eleven shops from the defendant Nos. 3 to 12. The appellants No. 1/1 to 1/4 and 5 are heirs of Ram Bihari son of Kunji Lal. Gopi Nath was real brother of Kunji Lal but he died issueless leaving behind his widow Laad Kunwar. Claim of the plaintiff Nos. 1 and 2 was on the basis of the Will executed by widow of Gopi Nath on 28-9-1990 in favour of Satish Chandra and Smt. Uma Devi brother and niece respectively of widow of late Gopi Nath, who died on 7-7-1991. The defendants/appellants contested the suit of the plaintiffs and disputed that the property belonged to late Gopi Nath. They claimed that the property was of Kunji Lal and alternative claim was on the basis of the Will executed by late Gopi Nath dated 20-1-1983. The trial Court framed a number of issues. Thus the issue No. 1 was regarding ownership and share of the plaintiffs in the suit property and issue Nos. 2 and 3 were in respect of the two Wills, one dated 20- 1-1983 in favour of the defendant/appellants and the third regarding validity of Will dated 28-6-1990 executed by Smt. Laad Kunwar in favour of the plaintiffs. The suit was dismissed and appeal of the plaintiff/respondents was allowed. Main issues for consideration in the instant second appeal are whether the plaintiffs had equal shares over the disputed land and the shops, validity of the Will dated 20-1-1983 in favour of the defendant Nos. 1 and 2 Laad Kunwar? Whether Smt. Laad Kunwar executed the Will dated 28-9-1990 in favour of the plaintiffs, if yes, its effect? Whether the property was owned by father of the defendants late Kunji Lal? Issue Nos. 1, 2, 3 and 6 were decided together. No documentary proof was adduced in support of the respective claim of Gopi Nath and Kunji Lal. None of the two brothers claimed to have got the property by succession. Claim of the plaintiffs was that the property belonged exclusively to Gopi Nath. Oral evidence was recorded, besides certain documents such as rent receipts, extract of the assessment register as well as questionnaires. Annual assessment of the house tax pertaining to the year 1986-87 up till 1990-91 shows that the defendants were recorded on the plot No. 1024. The plaintiffs tried to claim on the basis of certain questionnaires. The trial Court recorded conclusive findings that late Gopi Nath was not the owner of the property, besides copy of the judgment dated 29-9-1977 in S. C. C. Civil Revision No. 42 of 1976, A. G. Khare v. Gopi Nath Rastogi (Paper No. 152-C) was also relied upon. Gopi Nath admitted in the said proceedings that he had only single residential accommodation and no other house or shops and, therefore, admission of Gopi Nath in S. C. C. Civil Revision was read against him.
(3.) HOWEVER, the trial Court did not believe the Will dated 20-1- 1983 executed in favour of the defendants. A conclusive finding was recorded that the said Will was suspicious and since the defendants could not discharge burden to prove the Will, no reliance was placed. HOWEVER, the trial Court arrived at a conclusion that Smt. Laad Kunwar had no claim to the property and the property belonged to late Kunji Lal and not Gopi Nath. Accordingly, the suit was dismissed. The lower appellate Court reversed findings of the trial Court only on account of the reason that the defendants have set up an alternative plea. Claim of the defendants that the property belonged to Kunji Lal and alternatively, they claimed the property through the Will dated 20-1-1983 said to be executed in favour of Ram Bihari and Virendra Kumar.;