# Ram Niwas v. Ramesh Chand

- **Citation:** (2016) 5 ILRA 570
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-19
- **Bench:** Harsh Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-niwas-v-ramesh-chand-43877
- **Pages:** 9

## Headnote

A.B.L. Gaur, K. Ajit

This is defendant's second appeal against the judgment and decree passed by Ist Additional Civil Judge,
Gorakhpur on 22.4.1988 in Civil Appeal No.384 of 1986 "Ramesh Chandra Vs. Ram Niwas", arising out of
Original Suit No.342 of 1974 "Ramesh Chandra Vs. Ram Niwas", by which allowing the Civil Appeal No.384 of
1986 and setting aside the judgment and decree passed by trial court, the suit of plaintiff for possession was
decreed.
 I have come to the conclusion that the appellant has failed to show any illegality or incorrectness in the
impugned judgment and decree passed by first appellate court in Civil Appeal No.384 of 1986 on 22.4.1988
and there is no sufficient ground for interfering with or setting it aside the impugned judgment and decree.
The appeal has got no force and is liable to be dismissed with costs.

Held: Para-

Case Law discussed:

## Text

570 INDIAN LAW REPORTS ALLAHABAD SERIES
32. The accused appellant has been convicted under Section 376(2)(g) IPC. Section 376(2)(g) IPC
reads as follows :-

"(g) commits gang rape, shall be punished with rigorous imprisonment for a term which
shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the
Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of
imprisonment of either description for a term of less than ten years.

Explanation 1.-Where a woman is raped by one or more in a group of persons acting in
furtherance of their common intention, each of the persons shall be deemed to have committed gang rape
within the meaning of this sub-section.

Explanation 2.-"Women's or children's institution" means an institution, whether called
an orphanage or a home for neglected woman or children or a widows' home or by any other name, which
is established and maintained for the reception and care of woman or children.

Explanation 3.-"Hospital" means the precincts of the hospital and includes the precincts
of any institution for the reception and treatment of persons during convalescence or of persons requiring
medical attention or rehabilitation."

33. The minimum sentence which could be imposed under Section 376 (2) (g) is ten years. The
Court imposed the minimum sentence keeping in view the manner in which rape was committed in a ghastly
and brutal way and how the life and soul of the victim and her family was shattered, I do not find it to be a fit
case in which sentence can be reduced from the minimum sentence awarded by the Trial Court.

34. There is no force in the appeal. Hence, it is dismissed.

35. The appellant is in jail. The appellant shall serve out his remainder of sentence.

36. Let a copy of this order of sent to the concerned Court below.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2016

BEFORE

THE HON'BLE HARSH KUMAR, J.

Second Appeal No.- 1188 Of 1988

Ram Niwas ...Appellant
Versus
Ramesh Chand ...Respondent
5 All. Ram Niwas Vs Ramesh Chand

571
 Counsel for the Appellant:
Tarun Verma, A. Trivedi, Anil Kumar, H.K. Singh, N K Singh, R.A. Srivastava, R.P. Srivastava, S.P. Srivastava,
V.K. Srivastava, Vineet Kumar Singh

Counsel for the Respondent:
 A.B.L. Gaur, K. Ajit

This is defendant's second appeal against the judgment and decree passed by Ist Additional Civil Judge,
Gorakhpur on 22.4.1988 in Civil Appeal No.384 of 1986 "Ramesh Chandra Vs. Ram Niwas", arising out of
Original Suit No.342 of 1974 "Ramesh Chandra Vs. Ram Niwas", by which allowing the Civil Appeal No.384 of
1986 and setting aside the judgment and decree passed by trial court, the suit of plaintiff for possession was
decreed.
 I have come to the conclusion that the appellant has failed to show any illegality or incorrectness in the
impugned judgment and decree passed by first appellate court in Civil Appeal No.384 of 1986 on 22.4.1988
and there is no sufficient ground for interfering with or setting it aside the impugned judgment and decree.
The appeal has got no force and is liable to be dismissed with costs.

Held: Para-

Case Law discussed:

(Delivered by Hon'ble Harsh Kumar, J.)

1. This is defendant's second appeal against the judgment and decree passed by Ist
Additional Civil Judge, Gorakhpur on 22.4.1988 in Civil Appeal No.384 of 1986 "Ramesh Chandra
Vs. Ram Niwas", arising out of Original Suit No.342 of 1974 "Ramesh Chandra Vs. Ram Niwas",
by which allowing the Civil Appeal No.384 of 1986 and setting aside the judgment and decree
passed by trial court, the suit of plaintiff for possession was decreed.

2. The brief facts relating to the present appeal are that plaintiff-respondent Ramesh
Chandra filed civil suit against Ram Niwas on 28.2.1974 for a decree of ejectment and possession
as well as for recovery of damages for use and occupation with the allegations, that the defendant
was in possession of the house in suit as lecensee with the permission of Ram Kishun; that Ram
Kishun had executed a will deed in favour of his wife Smt. Murta Devi, who died intestate on
15.11.1972 leaving behind her the only heir and legal representative, her husband Ram Kishun; that
Ram Kishun executed a will deed in favour of plaintiff on 27.12.1972 and upon death of Ram
Kishun on 5.11.1973, the plaintiff became exclusive owner of the house in suit; that the plaintiff
terminated the license of defendant through valid notice dated 5.12.1973 which was served on him
on 13.12.1973; that the defendant in his written statement denied the allegations made in plaint and
contended that Smt. Murta Devi had two brothers Triveni and Satya Narain; that while plaintiff is
the son of Triveni, the defendant is son of Satya Narain and so the plaintiff and defendant are real
cousins to each other and both were nephews of their Bua Smt. Murta Devi; that Smt. Murta Devi
executed a will deed on 8.11.1972 in favour of defendant Ram Niwas and upon her death on
15.11.1972 the house in suit devolved on the defendant on the basis of above will deed; that since
Smt. Murta Devi had executed a will deed of house in suit in favour of Ram Niwas, her husband
did not inherit any rights and title in the house in suit and so by the execution of alleged will deed
572 INDIAN LAW REPORTS ALLAHABAD SERIES
by Ram Kishun in favour of plaintiff, which he did not get any rights or interests in the house in
suit; that since Ram Kishun did not inherit and was not owner of the house in suit he was not
competent to execute will deed in respect of the house and the same is null and void.

3. After framing the issues and recording the evidence of parties, the trial court IInd
Additional Munsif, Gorakhpur came to the conclusion that Smt. Murta Devi had executed a will
deed in favour of defendant and on her death, the defendant became owner of the house in suit and
holding that the plaintiff is not owner of the house in suit on the basis of will deed dated 27.12.1972
dismissed the suit of plaintiff for possession. Feeling aggrieved, the plaintiff filed Civil Appeal
No.384 of 1986 before District Judge, Gorakhpur and the 1st Additional Civil Judge, Gorakhpur,
allowed the same setting aside the judgment and decree passed by trial court regarding dismissal of
suit and decreed the suit of plaintiff for the relief of ejectment of defendant and possession with
costs. Feeling aggrieved, the defendant has preferred this appeal.

4. The appeal has been admitted on following substantial question of law framed by this
Court on 16.5.1988:-

"whether the will dated 8.11.1972 was proved in accordance with Sections 74 & 63
of the Succession Act and also whether the lower appellate court was justified in not examining the
document itself and finding as to whether it was genuine or not."

5. Heard Sri H.K. Singh, learned Senior counsel assisted by Sri Vineet Kumar, learned
counsel for the appellant and Sri K. Ajit, learned counsel for the respondent.

6. Learned counsel for the appellant contends that learned trial court had analysed the
evidence on record correctly and apart from the rival reports of Hand Writing and Finger Print
Experts, upon examining the original thumb impressions at his own with the help of magnifying
glass, he came to the conclusion and recorded finding that the will deed dated 8.11.1972 bears the
thumb impressions of Smt. Murta Devi (deceased); that it is proved from the evidence on record
that will deed dated 8.11.1972 in favour of defendant has been duly proved in accordance with the
requirements of Section 68 of Evidence Act by one of the two marginal witnesses; that the will
deed dated 8.11.1972 has been executed in accordance with the provisions of Sections 63 & 74 of
Indian Succession Act; that learned appellate court has acted wrongly in recording the arguments of
plaintiff-appellant in several pages and in disbelieving the will deed dated 8.11.1972 in favour of
defendant without making proper analysis of the evidence on record and without giving any
reasoning; that the findings of first appellate court in disbelieving the will deed of defendant, paper
No.188-C in view of order passed during pendency of Second Appeal No.1707 of 1966 in
proceedings under Order XXII Rule 5 C.P.C. arisen out of Civil Suit No.950 of 1964 are wrong,
incorrect, erroneous and self-contradictory; that the first appellate court has failed to examine the
thumb impressions in dispute at his own and without displacing the findings recorded by the trial
court on the basis of self-examination of thumb impressions, has acted wrongly in setting aside the
decree passed by trial court and in allowing the appeal; that the plaintiff-respondent has not sought
any relief for cancellation of will deed dated 8.11.1972 in favour of defendant or for adjudging the
5 All. Ram Niwas Vs Ramesh Chand

573
above will deed null and void; that the plaintiff has failed to prove his case and the first appellate
court has acted wrongly in relying on his case; that the suit of plaintiff is liable to be dismissed with
costs.

7. Per contra, learned counsel for the plaintiff-respondent contended that the judgment and
decree passed by first appellate court are sound on facts and law; that the judgment and decree
passed by trial court dismissing suit was based on surmises and conjectures; that it was fully proved
from the evidence on record as well as the report of Handwriting and Fingerprint Expert Sri R.K.
Jaiswal, based on scientific and microscopic examination of disputed and admitted thumb
impressions of Murta Devi deceased, duly proved by R.K. Jaiswal as P.W.-3, that the disputed
thumb impression over alleged will deed dated 8.11.1972 marked as D is blurred while admitted
thumb impressions A-2 & A-3 were totally blurred and were incapable of any comparison; that the
Fingerprint Expert has proved that there was difference in number of ridges between Delta and
Core in disputed thumb impression marked D and admitted thumb impression marked A-1; that the
trial court acted wrongly in coming to the conclusion that thumb impression over will deed dated
8.11.1972 was of Smt. Murta Devi particularly in view of the fact that admitted thumb impressions
A-2 & A-3 were totally blurred and are incapable of any comparison; that perusal of will deed
dated 8.11.1972 makes it crystal clear that the alleged thumb impression of Smt. Murta Devi over
the unregistered will deed is blurred and even with the help of magnifying glass the ridges of
disputed thumb impression may not be correctly studied or compared with admitted thumb
impressions which too have been found to be blurred by both the finger print experts; that
according to the defence case Smt. Murta Devi was willing to execute a will deed in favour of
defendant in respect of house in suit since 1966 but it could not be executed due to litigation in
respect of house in suit and so the alleged execution of unregistered will deed by her on 8.11.1972,
on falling ill, pending the second appeal is is doubtful, and creates strong suspicion over the
execution of alleged will deed by her; that according to para 26 of written statement Smt. Murta
Devi was ill but the will deed does not state so and it appears that Smt. Murta Devi was not in a
position to execute a will deed on 8.11.1972 because of serious illness due to which she died on
15.11.1972; that the alleged will deed dated 8.11.1972 does not bear the thumb impressions of Smt.
Murta Devi and there is no necessity for plaintiff-respondent to get the alleged will deed cancelled
or declared null and void; that the burden to prove the genuineness and execution of will deed dated
8.11.1972 lies on propounder of will deed i.e. on the defendant; that actually Smt. Murta Devi did
not execute any will deed in favour of defendant and the defendant did not get any rights or title
over the property in suit on the basis of alleged will deed; that Smt. Murta Devi died intestate and
all her properties were inherited by her sole heir and legal representative, Ram Kishun, her
husband; that in proceedings arisen out of Civil Suit No.950 of 1964 "Smt. Murta Devi Vs. Gama",
pending Second Appeal No.1707 of 1966, upon death of Smt. Murta Devi on 15.11.1972, her
husband Ram Kishun moved an application for substitution on 2.2.1973 and upon death of Ram
Kishun on 5.11.1973, plaintiff-respondent Ramesh Chandra moved an application on 7.1.1974 for
substituting him as his legal representative on the basis of will deed dated 27.11.1972; that after a
period of almost one year from the death of Smt. Murta Devi and more than one month from the
death of Sri Ram Kishun, the defendant moved an application seeking his substitution on the basis
of alleged forged and unregistered will deed dated 08.11.1972; that on moving of rival applications
574 INDIAN LAW REPORTS ALLAHABAD SERIES
by parties for substitution in place of Smt. Murta Devi, this Court framed two questions regarding
the genuineness of two rival will deeds and sent it to trial court for findings; that the trial court after
recording the evidence and hearing the parties came to the conclusion that Smt. Murta Devi did not
execute any will deed on 8.11.1972 in favour of defendant-appellant and recorded a finding as to
genuineness of will deed dated 27.12.1972 executed by Ram Kishun in favour of plaintiffrespondent; that the above findings were confirmed by this Court in Second Appeal No.1707 of
1966 in which disbelieving and rejecting the claim of defendant-appellant for substitution on the
basis of alleged will deed in question dated 8.11.1972 the plaintiff-respondent was substituted on
the basis of registered will deed dated 27.12.1972; that the findings with regard to will deed dated
8.11.1972 to be forged or invalid, given in Second Appeal No.10707 of 1966 has a binding effect
on the appellant and in absence of any cogent evidence to the contrary the above will deed may not
be adjudged a genuine or having been executed by Smt. Murta Devi by this Court; that the
substantial questions of law, on which the appeal was admitted on 16.5.1988, without notice to the
plaintiff-respondent, do not arise in the present appeal and only factual issues have been raised by
giving them the shape of substantial questions of law.

8. As per admitted facts on record, the property in suit belonged to Smt. Murta Devi wife
of Sri Ram Kishun, who died issue-less. Smt. Murta Devi had two brothers Triveni and Satya
Narain and while plaintiff Ramesh Chandra is son of Triveni, defendant Ram Niwas is son of Satya
Narain and so the plaintiff and defendant are real cousin brothers to each other and are real
nephews of Smt. Murta Devi being sons of her two brothers. Virtually this is a fight between two
cousin brothers over the property of their real Bua. It is also not disputed that Smt. Murta Devi died
on 15.11.1972 and her husband Ram Kishun died on 5.11.1973.

9. According to the plaint case on death of Smt. Murta Devi the property in suit was
inherited by her husband Ram Kishun, who executed a will deed in favour of plaintiff on
27.12.1972 and on death of Ram Kishun on 5.11.1973 on the basis of will deed dated 27.12.1972
the plaintiff became rightful owner in possession of the house in suit, while on the other hand
according to the case of defendant Smt. Murta Devi had executed a will deed in his favour on
8.11.1972 and on her death on 15.11.1972 the house in suit devolved on him under the will deed
dated 8.11.1972.

10. The plaintiff has not admitted execution of will deed dated 8.11.1972 by Smt. Murta
Devi in favour of defendant Ram Niwas and similarly defendant has denied execution of will deed
dated 27.12.1972 by Ram Kishun in favour of plaintiff Ramesh Chandra. It is also the case of
defendant that since on death of Smt. Murta Devi on 15.11.1972, he became lawful owner in
possession of the house in suit on the basis of will deed dated 8.11.1972, Sri Ram Kishun, husband
of Smt. Murta Devi did neither inherit the house in suit nor became owner in possession thereof
and so the execution of will deed by him in favour of plaintiff Ramesh Chandra is only a sham
transaction, on the basis of which no right or title was ever passed to Ramesh Chandra as the will
deed is null and void.
5 All. Ram Niwas Vs Ramesh Chand

575
11. It has been pleaded by defendant in the written statement that in a portion of house in
suit, Gama was tenant and since he committed default in payment of rent, Smt. Murta Devi filed
Civil Suit No.950 of 1964 in the Court of Munsif, Gorakhpur for his ejectment in which the
defendant used to do pairavi for and on behalf of Smt. Murta Devi and her husband Ram Kishun,
who were old persons and in that case Second Appeal No.1707 of 1966 is pending before the High
Court. It has also been stated that in the year 1966 Smt. Murta Devi executed a registered will deed
of her dwelling house in favour of plaintiff and assured the defendant for execution of will deed in
his favour in respect of the house in dispute. It has further been stated that in the year 1972 Smt.
Murta Devi fell ill and also her husband Ram Kishun and due to her illness, she executed the
impugned will deed dated 8.11.1972 in favour of defendant with the consent of her husband. It is
pertinent to mention that in above mentioned Second Appeal No.1707 of 1966 "Smt. Murta Devi
Vs. Gama", wherein defendant-appellant was doing pairavi on behalf of Smt. Murta Devi, upon her
death on 15.11.1972 an application for substitution was moved by her husband Sri Ram Kishun on
2.2.1973 and on death of Ram Kishun, the plaintiff-respondent Ramesh Chandra Gupta moved
application for his substitution on the basis of registered will deed dated 27.11.1972 executed by
Ram Kishun in his favour. That thereafter on 7.12.1973 after a period of almost one year from the
death of Smt. Murta Devi and more than one month from the death of Ram Kishun, the defendantappellant also moved an application seeking his substitution on the basis of alleged unregistered
will deed dated 8.11.1972.

12. Since there were rival candidates for getting themselves substituted in place of
appellant Smt. Murta Devi (deceased), this Court framed two issues (i) whether Smt. Murta Devi
executed any will deed in favour of Ram Niwas Gupta and (ii) whether Ram Kishun executed any
will deed in favour of Ramesh Chandra Gupta and remitted the issues for finding by the trial court.
On remittance of such issues, the trial court afforded opportunity of evidence and hearing to both
the parties and upon detailed analysis of evidence on record, decided issue no.1 in negative against
the defendant-appellant Ram Niwas Gupta holding that Smt. Murta Devi did not execute any will
deed in his favour, and decided the issue no.2 in affirmative holding that the will deed was
executed by Ram Kishun in favour of Ramesh Chandra Gupta, the plaintiff-respondent. In his order
dated 20.12.1975 recording the findings as above, the trial court held that the will deed Paper
No.94-Ka relied by Ram Niwas Gupta is unregistered and out of its two attesting witnesses Harish
Chandra Agrahari and Govind Lal Sharma, Harish Chandra Agrahari has been examined who is
related to the defendant-appellant Ram Niwas while the other attesting witness Govind Lal Sharma
is tenant of defendant and they are not independent persons. It also considered the other
circumstances with regard to registered sale deed and registered will deed, earlier executed by Smt.
Murta Devi in respect of other properties and the execution of alleged unregistered will deed was
found under very suspicious circumstances. On returning the findings so recorded by the trial court
in compliance of the remittance order, this Court after hearing the parties counsel passed order on
29.8.1977 holding that trial court has given good and convincing reasons for recording the findings
and confirming the findings of court below it held that after death of Smt. Murta Devi the disputed
property devolved on Ram Kishun and on his death it devolved upon Ramesh Chandra Gupta, the
plaintiff-respondent. The above order of High Court is final and is not said to have been challenged
before or set-aside by the superior court.
576 INDIAN LAW REPORTS ALLAHABAD SERIES
13. The learned counsel for appellant submitted that the findings of first appellate court
disbelieving the will deed dated 8.11.1972 without examining himself, the thumb impressions of
Smt. Murta Devi on the will deed dated 8.11.1972 (which were examined by the trial court with
magnifying glass) are wrong in view of the fact that in discussions over issue nos.2, 6 & 14 at one
place the arguments of plaintiff-respondent, "that the findings given in Civil Suit No.950 of 1964
having been confirmed by the High Court operates as res-judicata" has been rejected, while on the
other hand in the concluding para on above issues, in view of findings in Second Appeal No.1707
of 1966 the will deed dated 8.11.1972 has been held to be a forged document, which findings are
self-contradictory and so also the judgment and decree passed by first appellate court are liable to
be set-aside.

14. The arguments of defendant-appellant on above two counts, have no force because Istly
the perusal of impugned will deed dated 8.11.1972 shows that the disputed thumb impression of
Smt. Murta Devi over marked by 'D' it is blurred and her admitted thumb impressions marked by
A-2 and A-3 are totally blurred and incapable of comparison with each other. In the circumstances,
when the ridges of the thumb impressions are not clear, the points of similarities upon comparison
between in the thumb impressions 'D' and 'A-2, 3' may not be specified or indicated. Even if the
patterns of two thumb impressions are similar, it does not mean that both the thumb impressions
belong to one and the same person. The science of finger prints says that even in case of one or two
dissimilarities between the two thumb impressions, it can safely be said that the thumb impressions
are of different persons. The expert report 179/C submitted and proved by P.W.-3 states that thumb
impression A-2 & A-3 are totally blurred while 'D' and 'A-1 are partly blurred and while there are
19 intervening ridges between core and left Delta in disputed thumb impression marked by D, there
are 32 intervening ridges between above two points in admitted thumb impression A-1 which
makes it clear that the two thumb impressions do not belong to one and the same person. The
thumb impression 'D' has not been compared with 'A-1' as in report 179/C rather report 181/C
submitted and proved by defendant's witness, showing 6 points of similarities between D and A-2,
the opinion of their belonging to one person has been given. The above opinion may not be
accepted because thumb impression A-2 has been found totally blurred and defendant's expert
avoided to compare 'D' with 'A-1' due to dissimilarities between the two by saying that the thumb
impressions A-1 & A-3 were totally blurred. The mere mention by the trial court that he examined
the disputed and admitted thumb impressions himself with the help of magnifying glass has no
meaning because the dissimilarities in thumb impressions may not be examined by naked eyes or
even through magnifying glass, without scientific and microscopic examination upon enlargement
of photos of the thumb impressions and,

15. IIndly as far as the findings dated 20.12.1975 by trial court in Civil Suit No.950 of
1964 and its confirmation by High Court on 29.8.1977 in Second Appeal No.1707 of 1966 is
concerned, it is noteworthy that issues framed by High Court were not decided summarily rather
were decided upon recording the evidence. It is also noteworthy that Harish Chandra Agrahari, the
attesting witness of the will deed, who was produced as witness to prove the will deed in question
in Civil Suit No.950 of 1964, was again produced as D.W.-2 in this case in order to prove the same
will deed in present Civil Suit No.342 of 1974 and neither the other attesting witness of the will
5 All. Ram Niwas Vs Ramesh Chand

577
deed was produced nor any plausible reason for not producing him was assigned. Since Harish
Chandra Agrahari has been disbelieved by the Courts, the defendant-appellant could have produced
the other attesting witness but he did not do so. It is not disputed that Smt. Murta Devi had
executed a registered will deed and sale deed in respect of her other properties prior to the
execution of disputed will deed, so there could be no justification for her to execute an unregistered
will deed on 8.11.1972 in favour of the defendant-appellant. It is also noteworthy that as per
pleadings in written statement Smt. Murta Devi had assured the defendant-appellant of execution of
will deed in his favour since 1966 (when a registered will deed was executed in respect of her
dwelling house in favour of plaintiff-respondent) but the same could not be executed due to
litigation. But alleged execution of will pending litigation upon her falling ill itself creates doubts.
As per averments made in para 26 of written statement the will was executed during illness of both
Smt. Murta Devi and her husband Ram Kishun, but there is no whisper of their illness in the
disputed will deed, which further strengthens the suspicion and indicates that the unregistered will
deed is forged and fictitious. The impugned will deed does not speak that at the time of execution
of will deed Smt. Murta Devi was ill and non-mentioning of this fact in the will deed also makes
the execution of will deed doubtful. Moreover the will deed was allegedly executed by Smt. Murta
Devi in consultation with and in presence of her husband but the will deed neither bears the
signatures of Sri Ram Kishun nor contains any averments with regard to the alleged consultation
with her husband. Both the marginal/attesting witnesses of will deed are also interested persons and
scribe of the will deed who could have been an independent witness has also not been produced.

16. It is pertinent to mention that according to defendant/respondent he was doing pairavi
in Original Suit No.950 of 1964 "Smt. Murta Devi Vs. Sri Gama", and on the point of moving of
substitution application by him with inordinate delay in Second Appeal No.1707 of 1966, after a
period of almost one year from the death of Smt. Murta Devi and over one month from the death of
Ram Kishun, the defendant/appellant had taken a plea in above case that he had sent Ram Kishun
for moving application for substitution of his name in place of Smt. Murta Devi, but instead of
substitution of Ram Niwas he moved application for substitution of his own name. The above
contention is contradictory to the pleadings of defendant/respondent wherein he has stated that he
used to do pairavi on behalf of old Smt. Murta Devi and Ram Kishun.

17. Undoubtedly an order passed under proceedings of Order XXII Rule 5 C.P.C. does not
operate as res-judicata, but I find force in the arguments advanced by plaintiff/respondent that the
findings recorded in Civil Suit No.950 of 1964 regarding non-execution of any will deed by Smt.
Murta Devi between the same parties having been confirmed by this Court in Second Appeal
No.1707 of 1966, may not be ignored and in absence of any reliable and cogent evidence to the
contrary, there can be no justification for arriving at some other conclusion, holding the
unregistered will deed dated 8.11.1972 to be genuine and valid, upon the same evidence, been
reproduced by defendant/respondent in this case between the same parties.

18. In view of the discussions made above, I find that the defendant/appellant has failed to
prove by any reliable and cogent evidence, that the disputed unregistered will deed was executed
by Smt. Murta Devi on 8.11.1972 and has failed to show that the findings arrived at in Civil Suit
578 INDIAN LAW REPORTS ALLAHABAD SERIES
No.950 of 1964 and Second Appeal No.1707 of 1966 holding that Smt. Murta Devi did not execute
any will deed in favour of the defendant Ram Niwas on 8.11.1972, were wrong and incorrect. The
defendant-appellant has failed to show that the learned first appellate court has committed any
mistake in disbelieving the unregistered will deed dated 8.11.1972 set up by defendant in his
defence, irrespective of the findings in Civil Suit No.950 of 1964.

19. As far as the execution of registered will deed by Ram Kishun in favour of the plaintiffrespondent is concerned, the findings recorded by first appellate court are not alleged to be based
on misreading of evidence or suffering from any manifest error or perversity.

20. I am of the considered view that the defendant-appellant has failed to prove the
execution of unregistered will deed dated 8.11.1972 by Smt. Murta Devi in favour of
defendant/respondent Ram Niwas, in accordance with law and provisions of Sections 63 & 74 of
Indian Succession Act and has also failed to prove her thumb impressions over it. The substantial
question of law as framed is answered accordingly.

21. In view of the discussions made above, I have come to the conclusion that the appellant
has failed to show any illegality or incorrectness in the impugned judgment and decree passed by
first appellate court in Civil Appeal No.384 of 1986 on 22.4.1988 and there is no sufficient ground
for interfering with or setting it aside the impugned judgment and decree. The appeal has got no
force and is liable to be dismissed with costs.

22. The appeal is dismissed with costs.

23. Interim order, if any, stands discharged.

24. The lower court record be transmitted back to court below with a copy of this order.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.5.2016

BEFORE

THE HON'BLE KARUNA NAND BAJPAYEE, J.

Application U/S 482 No.- 1229 Of 2013

Mohd. Yaseen. ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Deepak Dubey