# Shahti Singh Patel & Anr v. Veer Singh & Ors

- **Citation:** (2022) 5 ILRA 1657
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-06
- **Case number:** Second Appeal No. 356 of 2022
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shahti-singh-patel-anr-v-veer-singh-ors-48469
- **Pages:** 12

## Headnote

Evidence Law - Indian Evidence Act,
1872 - Section 69- Permanent injunction
sought-against defendants/respondents-to not
interfere in property-on the basis of willwithout
seeking
declaratory
relief
by
Plaintiffs-no effort to prove execution of willsuit for permanent injunction-defective-as
declaratory relief not sought and title was
under cloud-which could be proved only under
provision of section 69 of Act, 1872 -suit
rightly dismissed.

Second Appeal dismissed. (E-9)

List of Cases cited:

## Text

5 All. Shahti Singh Patel & Anr. Vs. Veer Singh & Ors.
1657
been able to prove the guilt of appellant
Lalta for the offence of murder of deceased
Taule Ram beyond all reasonable doubt.

The judgment and order dated
19.7.2005
passed
by
the
Additional
Sessions Judge, Court No. 3, Pilibhit in
Sessions Trial No. 537 of 2001 for
conviction of the appellant No. 2 Lalta
Prasad is hereby set aside.

The appellant no. 2 Lalta Prasad
is in jail. He shall be released from the jail
forthwith, if not wanted in any other case.

54. In so far as another appellant
Nanhi Devi is concerned, she has been
already granted remission by the State
Government. As no one has appeared to
represent her case the Court desist from
forming any opinion on her case in view of
the remission of her sentence. The appeal,
accordingly, stands disposed of.

It is, however, kept open for
appellant
Nanhi
Devi
to
move
an
application to revive her appeal for
decision on the merits of the order of
conviction, if she so desires.

The office is directed to send
back the lower court record along with a
certified copy of this judgment for
information and necessary compliance.

The
compliance
report
be
furnished to this Court through the
Registrar General, High Court, Allahabad
within one month.

Sri
Anurag
Sharma
learned
Amicus
Curiae
rendered
valuable
assistance
to
the
Court. The Court
quantifies Rs. 15,000/- (Rupees Fifteen
Thousand only) to be paid to Sri Anurag
Sharma learned Advocate towards fee for
the able assistance provided by him in
hearing of this Criminal Appeal. The said
amount shall be paid to him by the Registry
of the Court within the shortest possible
time.
----------
(2022)05ILR A1657
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2022

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Second Appeal No. 356 of 2022

Shahti Singh Patel & Anr. ...Appellants
Versus
Veer Singh & Ors. ...Respondents

Counsel for the Appellants:
Sri Arpit Agarwal

Counsel for the Respondents:

Evidence Law - Indian Evidence Act,
1872 - Section 69- Permanent injunction
sought-against defendants/respondents-to not
interfere in property-on the basis of willwithout
seeking
declaratory
relief
by
Plaintiffs-no effort to prove execution of willsuit for permanent injunction-defective-as
declaratory relief not sought and title was
under cloud-which could be proved only under
provision of section 69 of Act, 1872 -suit
rightly dismissed.

Second Appeal dismissed. (E-9)

List of Cases cited:

1. Nirmala Verma Vs Nirmal Banerjii & ors. 2010
(1) AWC 978

2. Jeevan Bahadur Samaddar Vs Govind Charan
Samaddar & ors., 2013 (120) RD 717

3. Babu Singh & ors. Vs Ram Sahai @ Ram
Singh, 2008 (14) SCC 754
1658 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Jagdeesh Prasad Vs St. Manu/DE/0605/2015

5. Santosh Kumar Gupta Vs Harvinder Nath
Gupta & ors., 1996 SCC Online All 1325

6. Bharpur Singh & ors. Vs Shamsher Singh,
2009 (3) SCC 687

7. B. Venkatamuni Vs C.J. Ayodhya Ram Singh &
ors., 2006 (13) SCC 449

8. Anathula Sudhakar Vs P. Buchi Reddy (Dead)
by LRs. & ors. 2008 (4) SCC 594

9. Civil Appeal No.8971 of 2010 (Kripa Ram
(deceased) through Legal Representatives &
ors. Vs Surendra Deo Gaur & ors.
(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. Heard Sri Arpit Agarwal, learned
counsel for the appellants.

2. This is plaintiffs' second appeal
under Section 100 of Code of Civil
Procedure (hereinafter called as "CPC")
arising out of judgment and decree dated
13.03.2019 passed by District Judge,
Pilibhit and judgment and decree dated
08.03.2022 passed by Civil Judge (Senior
Division) arising out of Original Suit No.66
of 2012.

3. Facts, in brief necessary to
appreciate the controversy in hand, are that
the plaintiff filed an Original Suit No.66 of
2012
claiming
relief
of
permanent
injunction
against
the
defendantsrespondents for not interfering in the
property mentioned in the plaint.

4. Case set up by the plaintiff was that
a
registered
Will
was
executed
on
08.07.1954 by one Smt. Ram Daulati in
favour of late Ram Chandra Lal, father of
the plaintiffs. The testator of the Will died
in the year 1957 and since then the
possession of late Ram Chandra Lal
continued till his death and thereafter the
plaintiffs are in possession. The plaintiffs
had demolished the two storey building
which was existing over the land in dispute
for constructing a new house. It was on
10.03.2012, when the plaintiffs were trying
to raise construction then the defendants
objected
and
tried
to
take
forcible
possession. Hence, the suit for injunction
was filed.

5. The plaintiffs filed a list of
documents which included the electricity
bill, the tax receipts etc. Despite, notice, the
defendants did not turn up and the trial
Court
proceeded
ex-parte,
and
on
13.03.2019 dismissed the suit on the
ground that plaintiffs claimed to be the
owner in possession on the basis of the
Will deed dated 08.07.1954, which was not
brought on record and only the receipts of
the Nagar Palika Parishad regarding house
tax and water tax were filed.

6. Against the said judgment, a Civil
Appeal No.24 of 2019 was filed, the lower
appellate Court framed the following points
of determination under Order 41 Rule 31 of
CPC, which are as under:-

"1. क्या भवद्वान अवर न्यायालय द्वारा
पाररत भकया गया प्रश्नगत भनणशय पत्रावली पर
उपलब्ध साक्ष्य के भवपरीत है?

2. क्या अपीलाथी द्वारा प्रस्तुत की
गयी पूंजीकृत भदनाूंभकत 08.07.1954 के आधार
पर अपीलाथी / वादीगण का कोई भववाभदत
सूंपभत्त में पहुूंचते है अथवा नहीूं?"

7. During the pendency of the appeal,
the plaintiffs-appellants filed copy of the
Will deed under Order 41 Rule 27 of CPC,
which was taken by the Court. The lower
5 All. Shahti Singh Patel & Anr. Vs. Veer Singh & Ors.
1659
appellate Court tried both the points
together and found that the alleged Will
dated 08.07.1954 was not proved by the
appellants as required under Section 63 (C)
of the Indian Succession Act, 1925
(hereinafter called as "Act 1925") read
with Section 68 of the Indian Evidence Act,
1872 (hereinafter called as "Act 1872"),
and further held that Section 90 of the Act
of 1872 was not applicable, which was in
regard to the presumption of document
being 30 years old. The lower appellate
Court on 08.03.2022 dismissed the appeal,
hence the present appeal.

8. Sri Arpit Agarwal, learned counsel
for the appellants submitted that lower
appellate Court fell into the trap by holding
that the case of the appellants was not
covered under Section 90 and in fact,
covered under Section 90-A (2) of the Act,
1872. According to him, both the sections
operate in a different field, and the Will
dated 08.07.1954 was a 67 years old
document, and as per Section 90, the said
Will should have been presumed to have
been executed by the testator in favour of
late Ram Chandra Lal. According to him,
the lower appellate Court wrongly held that
the case would fall under sub-Section 2 of
Section 90-A of the Act, 1872.

9. Reliance has been placed upon the
decision of Co-ordinate Bench of this Court
in case of Nirmala Verma Vs. Nirmal
Banerjii and others 2010 (1) AWC 978.
Relevant paras 27 and 31 are extracted
hereasunder:-

"27. The Court further finds that
the lower appellate court has observed that
the presumption under Section 90 of the
Evidence Act was not available to the
appellant on the ground that the documents
filed was not 20 years old. The lower
appellate court held that the lease-deed
was executed on 21.2.1963 and that the suit
was filed on 5.2.1973, i.e., approximately
10 years old on the date of the institution of
the suit and therefore, the provisions of
Section 90 and 90A of the Act was not
applicable. In my opinion, the finding of the
lower appellate court is not correct. For
facility, Sections 90 and 90-A of the
Evidence Act, as applicable in the State of
U.P., reads as under :

90. Presumption as to documents
thirty years old.-Where any document
purporting or proved to be thirty years old,
is produced from any custody which the
signature and every other party of such
document, which purports to be in the
handwriting of any particular person, is in
that person's handwriting, and, in the case
of a document executed or attested, that it
was duly executed and attested by the
persons by whom it purports to be executed
and attested.

90-A.
Presumption
as
to
electronic record five years old:-- Where
any electronic record, purporting or
proved to be five years old, is produced
from any custody which the Court in the
particular case considers proper, the Court
may presume that the digital signature
which purports to be the digital signature
of any particular person was so affixed by
him or any person authorised by him in this
behalf."

31. In Manjoor Ali and Anr. v.
Kishmat
Ali
and
Ors.
MANU/UP/0519/2004
:
AIR
2004
Allahabad 395, I had the occasion to deal
with the provisions of Section 90 and 90A
of the Evidence Act. The Court held-

"From the aforesaid it is clear
that Section 90-A(20 does not override
1660 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 90 of the Evidence Act. Both the
sections operate in different fields. A
document which is registered and which is
more than 20 years old could not be
admitted in evidence under Section 90-A(2)
if the said document is the basis of the suit
or of defence. However, the presumption, if
available under Section 90, can therefore
be raised by the Court even after holding
that the presumption is not available under
Section 90-A of the Act. Thus, I hold, that
the presumption under Section 90(2) of the
Evidence Act is not taken away by the
provisions of Section 90-A )(2) of the Act.

The
question
therefore,
that
arises in the present case is whether the
presumption under Section 90(2) of the Act
was available on the certified copy of the
sale deed dated 16-5-1933 to the plaintiff.
It is relevant to state here that Section 90 of
the Act removes the strict rule of proof of
private
documents.
Presumption
of
genuineness may be raised where the
document is produced from a proper
custody. However, in view of the provisions
of Section 90 of the Act, it is the discretion
of the Court to accept the presumption
flowing from Section 90. In the present
case, the mere production of the certified
copy of the sale deed was not by itself
sufficient to justify the presumption of the
execution of the original under Section 90.
The provisions of Section 90 has to be read
along with Section 65 of the Act. Mere
production of a certified copy of the said
deed is not sufficient to draw a presumption
under Section 90. It must be shown that the
document produced was a copy admitted as
secondary evidence under Section 65 of the
Act.""

10. Reliance has also been placed
upon decision in case of Jeevan Bahadur
Samaddar
Vs.
Govind
Charan
Samaddar and others, 2013 (120) RD
717.
Relevant
para
18
is
extracted
hereasunder:-

"18.
However
'presumption'
under Section 90 is not obligatory on the
part of the Court. The word 'may' used in
both sub-sections leave it to the Court, to
draw such presumption or not. Obviously,
if the Court decline to raise presumption, it
must be for valid reasons. The words 'may
presume' has been defined in Section 4 of
Act, 1872 and reads as under:

"4. "May presume"- Whenever it
is provided by this Act that the Court may
presume a fact, it may either regard such
fact as proved, unless and until it is
disproved, or may call for proof of it."

(emphasis added)"

11. Sri Agarwal then contended that
father of the plaintiffs continued in
possession over the property in dispute
since 1954 till his death and thereafter the
plaintiffs continued, but dispute arose after
the existing building was demolished and
construction was going to be raised.
According to him, the Will which was
registered in 1954 should be presumed to
be a document executed by the testator and
need not be proved in the present suit in
view of provisions of Section 90. He then
contended that Section 68 of the Act of
1872 will not be attracted in the present
case as both the attesting witnesses are
dead and it is only when the Will is put to
execution, it was to be proved by one of the
attesting witnesses. In the present case, as
the document in question was 30 years old
(in U.P. Amendment 20 years). The said
Will was not required to be proved and it
will be presumed to have been duly
executed by the testator in favour of the
propounder of the Will.
5 All. Shahti Singh Patel & Anr. Vs. Veer Singh & Ors.
1661

12. I have heard counsel for the
plaintiffs-appellants and perused the record.

13. After perusal of record, this Court
finds that the plaintiffs-appellants had filed
a simplicitor suit for permanent injunction
restraining the defendants from interfering
in their peaceful possession on the basis of
the Will deed said to have been executed
on 08.07.1954 in favour of father of the
plaintiffs. The Will deed was never put to
execution either by the father of the
plaintiffs or the plaintiffs who are said to be
the propunder of the Will.

14. Before adverting to decide the
present appeal, a cursory glance of
provisions of Section 63 of the Act, 1925,
Sections 68, 69, 90 and 90-A of the Act of
1872
are
necessary
for
the
better
appreciation,
which
are
extracted
hereasunder:-

The Indian Succession Act, 1925

"S. 63. Execution of unprivileged
wills.--Every testator, not being a soldier
employed in an expedition or engaged in
actual warfare, 1 [or an airman so employed
or engaged,] or a mariner at sea, shall execute
his will according to the following rules:--

(a) The testator shall sign or shall
affix his mark to the will, or it shall be signed
by some other person in his presence and by
his direction.

(b) The signature or mark of the
testator, or the signature of the person signing
for him, shall be so placed that it shall appear
that it was intended thereby to give effect to
the writing as a will.

(c) The will shall be attested by
two or more witnesses, each of whom has
seen the testator sign or affix his mark to
the will or has seen some other person sign
the will, in the presence an d by the
direction of the testator, or has received
from
the
testator
a
personal
acknowledgement of his signature or mark,
or of the signature of such other person;
and each of the witnesses shall sign the will
in the presence of the testator, but it shall
not be necessary that more than one
witness be present at the same time, and no
particular form of attestation shall be
necessary.

The Indian Evidence Act, 1872

"S. 68. Proof of execution of
document required by law to be attested. --
If a document is required by law to be
attested, it shall not be used as evidence
until one attesting witness at least has been
called for the purpose of proving its
execution, if there be an attesting witness
alive, and subject to the process of the
Court and capable of giving evidence:

[Provided that it shall not be
necessary to call an attesting witness in
proof of the execution of any document, not
being a will, which has been registered in
accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908),
unless its execution by the person by whom
it purports to have been executed is
specifically denied.]

S. 69. Proof where no attesting
witness found. -- If no such attesting
witness can be found, or if the document
purports to have been executed in the
United Kingdom, it must be proved that the
attestation of one attesting witness at least
is in his handwriting, and that the signature
of the person executing the document is in
the hand writing of that person.
1662 INDIAN LAW REPORTS ALLAHABAD SERIES

S.
90.
Presumption
as
to
documents thirty years old. -- Where any
document, purporting or proved to be thirty
years old, is produced from any custody
which the Court in the particular case
considers proper, the Court may presume
that the signature and every other part of
such document, which purports to be in the
handwriting of any particular person, is in
that person's handwriting, and, in the case
of a document executed or attested, that it
was duly executed and attested by the
persons by whom it purports to be executed
and attested.

ch, and under the care of the
person with whom, they would naturally
be; but no custody is improper if it is
proved to have had a legitimate origin, or if
the circumstances of the particular case
are such as to render such an origin
probable.

S. 90A. Presumption as to
electronic records five years old. -- Where
any electronic record, purporting or
proved to be five years old, is produced
from any custody which the Court in the
particular case considers proper, the Court
may presume that the 2 [electronic
signature] which purports to be the 2
[electronic signature] of any particular
person was so affixed by him or any person
authorised by him in this behalf.

Explanation.
--
Electronic
records are said to be in proper custody if
they are in the place in which, and under
the care of the person with whom, they
naturally be; but no custody is improper if
it is proved to have had a legitimate origin,
or the circumstances of the particular case
are such as to render such an origin
probable."

15. Chapter III of Act 1925 is in
regard to the execution of unprivileged
Wills. Section 63 provides the manner in
which a testator shall execute his Will :-

(a) The testator shall sign or shall
affix his mark to the Will, or it shall be
signed by some other person in his
presence and by his direction,

(b) The signature or mark either
of the testator, or the signature of the
person signing for him, shall be placed and
shall appear that it was intended to give
effect to the writing as a Will,

(c) the Will has to be attested by two
or more witnesses, each of whom has seen
the testator sign or affix his mark on the
Will. Further, each of the witnesses shall
sign the Will in the presence of the testator,
but it shall not be necessary that more than
one witness be present at the same time.

16. Thus, the Act of 1925 prescribes
the methodology for execution of a Will.
The Act of 1872 is a procedural law and
Section 68 provides for the proof of
execution of a document which is required
by law to be attested.

17. Proviso to the said Section requires
that in case of proving a Will, the same has
to be done through attesting witnesses. The
legislature had prescribed the procedure for
proving the execution of a Will through an
attesting witness. But, in cases where the
attesting witnesses are not available, as in
the case of death or out of the jurisdiction of
the Court or kept out of the way by the
adverse party or cannot be traced despite
diligence search. In those cases, the Will
may be proved in the manner provided in
Section 69 of the Act of 1872.
5 All. Shahti Singh Patel & Anr. Vs. Veer Singh & Ors.
1663

18. The Supreme Court in Babu
Singh and others Vs. Ram Sahai @ Ram
Singh, 2008 (14) SCC 754 had the
occasion to consider the effect of Sections
68 and 69 of the Act of 1872. Relevant
paras 17 and 18 are extracted hereasunder:-

"17. It would apply, inter alia, in
a case where the attesting witness is either
dead or out of the jurisdiction of the court
or kept out of the way by the adverse party
or cannot be traced despite diligent search.
Only in that event, the Will may be proved
in the manner indicated in Section 69, i.e.,
by examining witnesses who were able to
prove the handwriting of the testator or
executant. The burden of proof then may be
shifted to others.

18. Whereas, however, a Will
ordinarily must be proved keeping in view
the provisions of Section 63 of the Indian
Succession Act and Section 68 of the Act, in
the event the ingredients thereof, as noticed
hereinbefore, are brought on record, strict
proof of execution and attestation stands
relaxed.
However,
signature
and
handwriting, as contemplated in Section
69, must be proved."

19. In the case in hand, it was a
specific case of the plaintiffs that Will deed
was executed on 08.07.1954 and more than
67 years have elapsed and both the attesting
witnesses have died, thus Section 69 comes
into play and the execution of the Will deed
was required to be proved according to
Section 69 by at least proving that the
attestation of one attesting witness at least
is in his handwriting, and that the signature
of the person executing the Will is in the
handwriting of that person. But, the
plaintiffs apart from filing the Will deed
dated 08.07.1954 during pendency of the
appeal did not take any step to prove the
handwriting of either one of the attesting
witness or the executor, and solely relied
upon Section 90 of the Act 1872, for
presuming the document to be 20 years old,
which need not to be proved.

20. The Division Bench of Delhi High
Court in Jagdeesh Prasad Vs. State
Manu/DE/0605/2015,
in
a
similar
circumstances, held that in case of death of
attesting witnesses, Section 69 of the Act
comes into play and the execution of the
Will deed is required to be proved by the
handwriting of one of the witnesses and the
executant . Relevant Paras 13, 14 and 15
are extracted hereasunder:-

"13.
The
legislature
was
conscious of the fact that a situation may
arise where both attesting witnesses have
taken the train to the heaven before the
testator died or before the beneficiary
propounds the Will. The consciousness of
the legislature can be found in Section 69
of the Indian Evidence Act, 1872, which
reads as under:-

69. Proof where no attesting
witness found -

If no such attesting witness can
be found, or if the document purports to
have been executed in the United Kingdom,
it must be proved that the attestation of one
attesting witness at least is in his
handwriting, and that the signature of the
person executing the document is in the
handwriting of that person.

14. Section 69 of the Indian
Evidence Act, 1872, while dealing with a
situation where no attesting witness can be
found, requires evidence to be led that the
signatures on a document which law
requires to be attested by one or more
1664 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses are that of the executant with
further proof that there is attestation in his
handwriting by one attesting witness.

15. Law does not envisage that if
both attesting witnesses to a Will have died
or for some reason are not available, that
would be the end of the Will. The way
forward has been guided by the legislature
under Section 69 of the Indian Evidence
Act, 1872."

21. A Co-ordinate Bench of this Court
in Santosh Kumar Gupta Vs. Harvinder
Nath Gupta and others, 1996 SCC Online
All 1325 while deciding the testamentary
suit held that in case, the attesting
witnesses are dead or not available, the
execution of the Will can be proved in
accordance with mode prescribed under
Section 69 of the Act, then Court should
not raise presumption under Section 90 of
the Act and admit the document in
evidence, but direct the party to prove the
document by leading evidence. Relevant
Para 15 is extracted hereasunder:-

"15. As already discussed above,
plaintiff in this case has failed to prove by
cogent evidence that both the attesting
witnesses are dead. The plaintiff has also
failed to prove the hand writing and the
signature of said attesting witnesses under
Section 69 of the Evidence Act. He has not
produced any relation or any such person
who would depose that the attesting
witnesses were dead. On the contrary, the
plaintiff had tried to prove the same by his
evidence and has failed to establish the
said fact before this Curt. In such a
situation, in my opinion, the presumption
under Section 90 of the Evidence Act is not
available to the plaintiff. I consequently do
not find any force in the submission of Shri
J. Nagar regarding the presumption about
due and valid execution and attestation of
the document on the ground that is is over
30 years old. In view of the aforesaid
discussion I am of this opinion that the
plaintiff has failed to prove the due and
valid execution and attestation of the Will
(A-5). Issues 1 and 2 are decided
accordingly against the plaintiff."

22. Dealing with the similar situation
for the execution and proving of a Will
under Section 63 of the Act 1925 and
Section 69 read with Section 90 of the Act
1872, the Apex Court in Bharpur Singh
and others Vs. Shamsher Singh, 2009 (3)
SCC 687, held that in case, the provisions
of Section 68 of the Act 1872 could not be
complied with, then the other provisions
contained therein, namely, Section 69 and
70 would be attracted. Relevant Paras 18
and 19 are extracted hereasunder:-

"18. Respondent was a mortgagee
of the lands belonging to the testatrix. He is
also said to be the tenant in respect of some
of the properties of the testatrix. It has not
been shown that she was an educated lady.
She had put her left thumb impression. In
the aforementioned situation, the question,
15 which should have been posed, was as
to whether she could have an independent
advice in the matter. For the purpose of
proof of will, it would be necessary to
consider what was the fact situation
prevailing in the year 1962. Even assuming
the subsequent event, viz., the appellants
had not been looking after their mother as
has been inferred from the fact that they
received the news of her death only six
days after her death took place, is true, the
same, in our opinion, would be of not much
significance.

19. The provisions of Section 90
of the Indian Evidence Act keeping in view
5 All. Shahti Singh Patel & Anr. Vs. Veer Singh & Ors.
1665
the nature of proof required for proving a
Will have no application. A Will must be
proved in terms of the provisions of Section
63(c) of the Indian Succession Act, 1925
and Section 68 of the Indian Evidence Act,
1872. In the event the provisions thereof
cannot be complied with, the other
provisions
contained
therein,
namely,
Sections 69 and 70 of the Indian Evidence
Act providing for exceptions in relation
thereto would be attracted. Compliance
with statutory requirements for proving an
ordinary document is not sufficient, as
Section 68 of the Indian Evidence Act
postulates that execution must be proved by
at least one of the attesting witness, if an
attesting witness is alive and subject to the
process of the Court and capable of giving
evidence."

23. It is no doubt correct that a Will
executed under Section 63 of the Act, 1925
has to be proved that it was executed, at
least by one of the attesting witnesses under
Section 68, the requirement of Section 63
of Act, 1925 read with Section 68 of Act,
1872 has already been considered and
upheld by the Apex Court in case of B.
Venkatamuni Vs. C.J. Ayodhya Ram
Singh and others, 2006 (13) SCC 449.

24. I t is only in case where plaintiffs
come up with a case that the attesting
witnesses of the Will have died or not
available to prove the execution of the Will
as required under Section 68, then the
alleged Will deed is required to be proved
by the handwriting of one of the witnesses
of attesting witnesses and the executant
under Section 69.

25. Argument raised at bar that there
was no requirement to prove the execution
of Will under Section 68, as presumption in
favour of the execution of Will is there,
under Section 90 is a fallacy and has no
merit.

26. As regards, a Will which has been
executed under Section 63 of the Act 1925,
the mandatory provision has been provided
under Section 68 for proving its execution
in case of non-compliance of Section 68,
Section 69 is attracted. Reliance placed
upon the decision by appellants on the
decision of Nirmala Verma (Supra) is
distinguishable in the present case and the
same is not applicable.

27. Moreover, in that case, provisions
of Section 69 of the Act 1872 were not
considered. Further the relief sought in the
suit is only for the permanent injunction
claiming on the basis of the Will deed
executed in favour of the father of the
appellants. No declaratory relief has been
sought by the plaintiffs for declaring their
ownership/title on the basis of the Will
dated 08.07.1954. The Apex Court in
Anathula Sudhakar Vs. P. Buchi Reddy
(Dead) by LRs. and others 2008 (4) SCC
594 had cleared the air in regard to the
principle as to when a suit for permanent
injunction will lie. Relevant Paras 13 and
21 are extracted hereasunder:-

"13. The general principles as to
when a mere suit for permanent injunction
will lie, and when it is necessary to file a
suit for declaration and/or possession with
injunction as a consequential relief, are
well settled. We may refer to them briefly.

13.1) Where a plaintiff is in
lawful or peaceful possession of a property
and such possession is interfered or
threatened by the defendant, a suit for an
injunction simpliciter will lie. A person has
a right to protect his possession against
any person who does not prove a better
1666 INDIAN LAW REPORTS ALLAHABAD SERIES
title by seeking a prohibitory injunction.
But a person in wrongful possession is not
entitled to an injunction against the rightful
owner.

13.2) Where the title of the
plaintiff is not disputed, but he is not in
possession, his remedy is to file a suit for
possession and seek in addition, if
necessary, an injunction. A person out of
possession, cannot seek the relief of
injunction simpliciter, without claiming the
relief of possession.

13.3) Where the plaintiff is in
possession, but his title to the property is in
dispute, or under a cloud, or where the
defendant asserts title thereto and there is
also a threat of dispossession from
defendant, the plaintiff will have to sue for
declaration of title and the consequential
relief of injunction. Where the title of
plaintiff is under a cloud or in dispute and
he is not in possession or not able to
establish
possession,
necessarily
the
plaintiff will have to file a suit for
declaration, possession and injunction.

21. To summarize, the position in
regard to suits for prohibitory injunction
relating to immovable property, is as under
:

(a) Where a cloud is raised over
plaintiff's title and he does not have
possession, a suit for declaration and
possession, with or without a consequential
injunction, is the remedy. Where the
plaintiff's title is not in dispute or under a
cloud, but he is out of possession, he has to
sue for possession with a consequential
injunction. Where there is merely an
interference
with
plaintiff's
lawful
possession or threat of dispossession, it is
sufficient
to
sue
for
an
injunction
simpliciter.

(b) As a suit for injunction
simpliciter
is
concerned
only
with
possession, normally the issue of title will
not be directly and substantially in issue.
The prayer for injunction will be decided
with reference to the finding on possession.
But in cases where de jure possession has
to be established on the basis of title to the
property, as in the case of vacant sites, the
issue of title may directly and substantially
arise for consideration, as without a
finding thereon, it will not be possible to
decide the issue of possession.

(c) But a finding on title cannot
be recorded in a suit for injunction, unless
there
are
necessary
pleadings
and
appropriate issue regarding title [either
specific,
or
implied
as
noticed
in
Annaimuthu Thevar (supra)]. Where the
averments regarding title are absent in a
plaint and where there is no issue relating
to title, the court will not investigate or
examine or render a finding on a question
of title, in a suit for injunction. Even where
there are necessary pleadings and issue, if
the matter involves complicated questions
of fact and law relating to title, the court
will relegate the parties to the remedy by
way of comprehensive suit for declaration
of title, instead of deciding the issue in a
suit for mere injunction.

(d) Where there are necessary
pleadings regarding title, and appropriate
issue relating to title on which parties lead
evidence, if the matter involved is simple
and straight-forward, the court may decide
upon the issue regarding title, even in a suit
for injunction. But such cases, are the
exception to the normal rule that question
of title will not be decided in suits for
injunction. But persons having clear title
and possession suing for injunction, should
not be driven to the costlier and more
5 All. Shahti Singh Patel & Anr. Vs. Veer Singh & Ors.
1667
cumbersome
remedy
of
a
suit
for
declaration, merely because some meddler
vexatiously or wrongfully makes a claim or
tries to encroach upon his property. The
court should use its discretion carefully to
identify cases where it will enquire into title
and cases where it will refer to plaintiff to a
more
comprehensive
declaratory
suit,
depending upon the facts of the case."

28. Thus, the position, which culls out
is that the permanent injunction was sought
on the basis of a Will without seeking a
declaratory relief by the plaintiffs nor any
effort was made to prove the execution of
the Will from where the plaintiffs sought to
derive their title. The suit filed by the
plaintiffs for permanent injunction was
defective as declaratory relief was not
sought and the title was under cloud, which
could have been proved only by adhering to
the provisions of Section 69 of the Act of
1872.

29. Thus, considering the facts and
circumstances of the case, I find that no
case for interference has been made out by
the plaintiffs-appellants before this Court.
More so, the argument that Will deed dated
08.07.1954 was to be presumed to have
been executed in view of Section 90 has no
merit as the plaintiffs were required to
prove the execution of the Will by
adverting to provisions of Section 69 of the
Act
1872
by
proving
through
the
handwriting of one of the witnesses of the
Will and the executant which he failed and
thus, not entitled to any relief.

30. The Apex Court in Civil Appeal
No.8971 of 2010 (Kripa Ram (deceased)
through
Legal
Representatives
and
others vs. Surendra Deo Gaur and
others, decided on 16.11.2020 has held that
the second appeal can be dismissed without
even formulating the substantial question of
law. Relevant paras 25 and 26 reads as
under :

"25. In a judgment reported as
Ashok Rangnath Magar v. Shrikant
Govindrao Sangvikar (2015) 16 SCC 763,
this Court held that the second appeal can
be dismissed without even formulating the
substantial question of law. The Court held
as under:

"18. In the light of the provision
contained in Section 100 Code of Civil
Procedure and the ratio decided by this
Court,
we
come
to
the
following
conclusion:
(i) On the day when the second appeal is
listed for hearing on admission if the High
Court is satisfied that no substantial
question of law is involved, it shall dismiss
the second appeal without even formulating
the substantial question of law;

(ii) In cases where the High
Court after hearing the appeal is satisfied
that the substantial question of law is
involved, it shall formulate that question
and then the appeal shall be heard on those
substantial question of law, after giving
notice and opportunity of hearing to the
Respondent;

(iii) In no circumstances the High
Court can reverse the judgment of the trial
court and the first appellate court without
formulating the substantial question of law
and
complying
with
the
mandatory
requirements of Section 100 Code of Civil
Procedure."

26. In view of the above findings,
we do not find any error in the judgment
and order of the High Court dismissing the
Second Appeal. The present appeal is thus
1668 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissed. Pending applications, if any,
shall stand disposed of."

31. Both the Courts below had rightly
dismissed the suit of the plaintiffsappellants, which needs no interference by
this Court. No substantial question of law is
made out.

32. Second appeal fails and is, hereby,
dismissed.
----------
(2022)05ILR A1668
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.04.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ Tax No. 1085 of 2021
With
Writ Tax No. 1092 of 2021
With
Writ Tax No. 1096 of 2021

M/s Sultan Tanneries & Leather Products
(P) Ltd., Deoria ...Petitioner
Versus
U.O I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rahul Agarwal

Counsel for the Respondents:
A.S.G.I.,
Sri
Dhananjay
Awasthi,
Sri
Sudarshan Singh

A. Civil Law - CGST Act 2017 - Court is
frequently coming across writ petitions in which
impugned orders reflect non-observance of
principles of natural justice and eve reply
submitted by assesses is not being considered
by Assessing Officers under the faceless regime
as well as non-faceless regime under the Act,
1961.
B. Taxpayers are important pillars of economy of
the country. Their harassment not only causes
jolt to the economy of the country and also
employment and also comes in the way of
economic policy of the Government including
the policies "Ease of Doing Business". The
instructions dated 23.04.2022 issued by the
CBDT in exercise of powers conferred u/S 119 of
the Act, 1961 and St.ment made by the
Respondent No.04 in the afore quoted Para 10
of the personal affidavit dated 19.05.2022 needs
to be implemented truly and effectively and,
therefore, necessary mandamus needs to be
issued to the respondents.

Writ Petition dismissed. (E-12)

List of Cases cited:-

1. Canon India Pvt. Ltd. Vs Commissioner of
Customs 2021 SCC Online SC 200

2. Commissioner of Customs Vs Syed Ali
(2011)3 SCC 537

3. Swati Menthol & allied CHEM Ltd. Vs Jt.
Director, DRI (2014)(304) ELT 21(Gujarat)

4. Pahwa Chemicals (P) Ltd. Vs Commissioner of
Central Excise, New Delhi (2005)2 SCC 720

5. Commissioner of Central Excise, Meerut-I &
anr. Vs M/s Parman Iron Pvt. Ltd. Bijnor 2011(2)
ADJ 83(DB)
(Delivered by Hon'ble Ashutosh
Srivastava, J. )

1. These writ petitions raise common
issue and questions of law, therefore, they
are being decided by a common order. The
Writ Tax No.1085 of 2021 (M/s Sultan
Tanneries and Leather Products Vs. Union
of India and others) is treated as the leading
writ petition.

2. We have heard Sri Rahul Agarwal,
learned counsel for the petitioner, Sri
Krishna Agarwal, learned counsel for the
Respondent,
Directorate
of
Revenue