1. Heard Sri M.A. Qadeer, learned Senior Counsel assisted by Sri Ashok Kumar Tripathi, learned counsel for the appellant. No one has appeared on behalf of the respondents and the matter is being taken up for hearing inasmuch as this Court vide order dated 15.07.2014 had directed that the case shall be heard ex parte.
2. This is the defendant''s second appeal.
3. At the time of admission, this Court framed the following issue:
1. Whether the court below could decree the suit of the plaintiff ignoring the admission made by predecessor in interest of plaintiff that no Will was executed in her favour specially when the admission has not been explained by the plaintiff''s husband, who held power of attorney and appeared as witness on behalf of plaintiff?
4. The plaintiff filed a suit seeking the relief of declaration of her 1/4 share, 1/2 share and 1/2 share in the property in dispute on the basis of Will dated 27.02.1983. The suit property No.1 is a house in which she is claiming 1/4 share. The suit property No.2 is the house in which she is claiming 1/2 share. The suit property no.3 is a vacant piece of land plot no.546 area 11 Biswa suit in village Ravan alias Bada Gaon in which she is claiming 1/2 share.
5. According to the pedigree mention in paragraph 1 of the plaint one Kishan is the common ancestor of the plaintiff and the defendant. Kishan had 4 sons. The elder son of Kishan is Likhhi Ram. Likhhi Ram had 2 sons, Kabool Singh and Harphool Singh. Kabool Singh had 2 sons, Raghunath and Chandra Bhan (defendant). Harphool Singh had 1 son Dasi Ram. Dasi Ram has 1 daughter Smt. Aishwati (plaintiff). According to the plaintiff Dasi Ram (father of the plaintiff) died during the life time of Harphool Singh (grand father of the plaintiff) and therefore, Harphool Singh left all his share of his movable and immovable property in favour of Smt. Sharma Devi wife of Dasi Ram and mother of the plaintiff through a Will dated 27.02.1983. Smt. Sharma Devi died on 20.03.1988 and therefore, the entire property devolved upon the plaintiff as her sole heir. In paragraph 6 of the plaint, it is stated that Harphool Singh also executed a Will dated 14.02.1979 in favour of the defendant but since the Will in favour of the plaintiff is dated 27.02.1983 the same will supersede the Will of 14.02.1979 but on the basis of the previous Will the defendant is trying to grab the suit property of the plaintiff. The case of the plaintiff is that the defendant has no right to execute any such sale deed.
6. The plaint allegations were denied by the defendant in his written statement. According to the defendant the Will of Harphool Singh dated 14.02.1979 was a registered Will and therefore a valid document. It was also stated that the suit property no.1 in the plaint has been wrongly described by the plaintiff. In the West of the suit property there is no Talab (pond) instead there is a house of Tika and Basant. In the South there is no road but rather there is the house of Sri Bhikhari. In the suit property no.3 earlier there used to be a pakka house which has now collapsed but which was being used by the defendant and on that now there are 11 trees of Keekar and one tree of Ber which are being looked after by the defendant. The suit property no.2 is used for family residence which is surrounded by a pakka wall and it contains one veranda and there is no other construction. The suit property no.1 belonged to one Kabool Singh, father of the defendant, which contains two rooms, two kothas with shed, two dukadiya, one veranda and a boundary wall. The female residential quarter was in the possession of Harphool Singh, in which he used to live, which facts have been concealed by the plaintiff in her plaint. It was denied that the suit property belonged to Harphool Singh and Kabool Singh but it was stated that the entire property belonged to Kabool Singh, in which Harphool Singh had no share. According to the defendant the Will dated 27.02.1983 stated to be executed by Harphool Singh in favour of Sharma Devi is a fraudulent Will. In paragraph 19 of the written statement a categorical averment has been made that Sharma Devi in mutation proceedings had sworn an affidavit that the will dated 14.02.1979 in favour of the defendant was a valid will and that the other will dated 27.02.1983 was not valid and on the basis of will dated 14.02.1979 the name of the defendant was entered in the revenue records over the suit property. In paragraph 26 of the written statement, it is sated that the plaintiff is claiming 1/4 share in the suit property no.1 without disclosing who is the owner of the remaining portion of the property, which is again a deliberate concealment of fact from the court.
7. The trial court framed issues. Issue no.1 was as to whether the plaintiff is the title holder of the suit property by virtue of the will dated 27.02.1983. On behalf of the plaintiff List 51, containing 4 documents, was filed in which was also a judgment/order of the revenue court passed in suit proceeding filed under Section 229 (B) of the U.P. Zamindari Abolition and Land Reforms Act, 1950. The list also contained the Power of Attorney executed by the plaintiff in favour of her husband Ashok Kumar as well as the evidence of Ashok Kumar as DW-1 and the testimony on affidavit of one Jagannath as DW-2 who is stated to be witness of the will dated 27.02.1983 to the effect that the share of Harphool Singh and Kabool Singh.
8. On behalf of the defendant one Sri Tej Ram appeared as DW-1 who was stated to be witness of the will dated 14.02.1979 stated to be executed by Harphool Singh in favour of the defendant. The statement of witness DW-3, i.e. the defendant himself was also recorded.
9. PW-3 Jagannath in his oral testimony has stated that when Harphool Singh executed the will in favour of late Sharma Devi he was present and Harphool Singh has affixed his thumb impression on the will but he also stated that he reached the village one day before the will was written down and therefore, the trial court has treated him to be only a chance witness. He also stated that 10-15 persons were already present at the residence of Harphool Singh and therefore, the trial court has expressed a doubt as to why was only Jagannath made a witness of the will and not those persons who were already present there. Jagannath in his testimony has stated that Mahendra wrote down the Will. However, another witness Krishan Veer has stated that Mahendra used to write Wills but has stated that because he was educated, therefore, he was called to write down the Will. The witness Krishan Veer has stated that the property in dispute is situated in the South but he does not know what is constructed there and he does not know how many sheds are there in that property. From this the trial court has concluded that this witness was probably not present at the time of writing of the Will. This witness also could not explain as to why Harphool Singh wanted to supersede the earlier Will dated 14.02.1979 although recording of any such reason for superseding an earlier Will is not mandatory. Krishan Veer, PW-2 also stated that he was not called at the time of writing the Will and that he had gone there on his own. The trial court has, therefore, held that it is surprising that although PW-2 is a resident of the same village, namely, Ravan alias Bada Gaon but he could not disclose the date of Will or the month when it was written or how many days after the writing of the Will did Harphool Singh expire although the fact on record is that Harphool Singh died on the very next date after making of the said Will and therefore this witness is only a chance witness. The trial court has also noted that the Will dated 14.02.1979 was a registered Will but the alleged subsequent Will dated 27.02.1983 was not a registered Will. The trial court has also doubted that when Harphool Singh executed the alleged Will dated 27.02.1983 in favour of his daughter-in-law Sharma Devi the plaintiff was also alive and because the husband of Sharma Devi had expire, therefore, the responsibility of the plaintiff also fell upon Harphool Singh but Harphool Singh has not made any allowance for the grand daughter (plaintiff) in the Will of 1983.
10. The trial court has further held that although the findings recorded by the revenue court would not be binding upon the civil court but the evidence of the sworn affidavit filed in those proceedings can be relied upon in subsequent civil proceedings. In the revenue proceedings the plaintiff had filed an affidavit affirming the Will of 14.02.1979. In those proceedings Smt. Sharma Devi mother of the plaintiff Smt. Aishwati was the plaintiff and Chandra Bhan was the defendant. This affidavit sworn by Smt. Sharma Devi was filed by her in revenue Suit No.56-57/83, Smt. Sharma Devi Vs. Harphool. This document was also filed by the defendant herein Sri Chandra Bhan in Suit No.430 of 1987, Chandra Bhan and another Vs. Smt. Aishwati and others. In this affidavit Smt. Sharma Devi, mother of plaintiff Aishwati has admitted that the Will executed by Harphool Singh in favour of Chandra Bhan was a genuine Will and duly registered and he was in possession of the suit property also and that she has no Will in her favour and she had taken a contrary stand on the instigation of some persons from the village. Relying on this affidavit of Sharma Devi, the trial court dismissed the plaintiff''s present suit.
11. Aggrieved, the plaintiff filed an appeal. The appellate court has, however, allowed the appeal and decreed the plaintiff''s suit on the ground that mutation proceedings before the Tehsildar are summary proceedings which do not affect the rights of the parties ultimately to be settled in appropriate civil proceedings relating to right or title. The appellate court has also held as under:
"Further it is important to note here that no reliable and confidential evidence was adduced by the defendant to establish this fact that Smt. Sharma Devi had filed affidavit in mutation proceedings and her statement was recorded in those proceedings."
12. This finding of the appellate court is totally contrary to the record. The records of the Suit No.430 of 1987 was before the appellate court and the said file was also summoned and the documents filed therein have also been referred by the lower appellate court. The record of suit proceedings No.430 of 1987 were also summoned by this court by order dated 30.09.2013 and the same has also been made available by the office.
13. I have gone through the records of Suit No.430 of 1987. In that suit, Paper No.83-Ga C/2 has been filed which is a copy of the affidavit filed by Smt. Sharma Devi before the Naib Tehsildar, Baghpat (Meerut) in Revenue Suit No.56-57 of 1983 (Smt. Sharma Vs. Harphool Singh). In this affidavit there is a clear averment of Smt. Sharma Devi, mother of the plaintiff that she is not in possession of the property in dispute nor is there any Will in her favour. She has also stated that the Will which is in the possession of Chandra Bhan is a registered Will and is the genuine Will and Chandra Bhan is also in possession of the suit property in dispute and she has no objection if the name of Chandra Bhan is mutated in the revenue records in place of Harphool. The contents of affidavit reads as under:
"VERNACULAR MATTER OMITTED"
14. Thus, from the own affidavit of the mother of the plaintiff, it is amply demonstrated that she had sworn an affidavit in the revenue proceedings that the Will executed by Harphool Singh in favour of Chandra Bhan was a genuine and valid Will duly registered and that there is no Will in her favour. Though the affidavit was filed in the revenue proceedings but merely because the said proceedings are summary proceedings with regard to mutation and have no binding effect in a suit for determining of title or rights to the property in question one cannot ignore the averments made and sworn on affidavit in those proceedings. If it was the stand of the predecessor of the plaintiff in her affidavit that there is no Will in her favour, the plaintiff cannot resile from the same and take shelter of the subsequent Will dated 27.02.1983 stated to have been made by Harphool Singh in favour of Sharma Devi. An affidavit is a testimony of averments made on oath which gives it sanctity in law and unless put to challenge and rebutted, the averments of an affidavit, made on oath being an admission of a fact, must be taken to be true and binding on the person swearing the affidavit. In the present case the rights and title of the plaintiff flow from Smt. Sharma Devi and if there was no Will in favour of Sharma Devi in respect of the property in dispute the plaintiff cannot acquire any rights or title over the said property. The plaintiff cannot take a better title in the property in dispute than what her mother possessed. It is quite clear that the said affidavit Paper No.83-GA C/2 had been filed in mutation proceedings after the death of Harphool Singh as it related to mutation of the name of Chandra Bhan in place of Harphool Singh by virtue of the earlier registered Will dated 14.02.1979 executed by Harphool in favour of Chandra Bhan.
15. In this view of the matter, in my opinion, findings recorded by the lower appellate court are wholly contrary to the documentary evidence on record and therefore cannot be sustained.
16. For reasons aforesaid, this second appeal is allowed. The judgment of the lower appellate court is set aside. The plaintiff''s suit is dismissed.
17. Parties shall bear their own cost.
