S.B. Civil Second Appeal No. 429/2016. Case: Gopal Bagdi Vs Om Bagdi. Rajasthan High Court

Case Number:S.B. Civil Second Appeal No. 429/2016
Party Name:Gopal Bagdi Vs Om Bagdi
Counsel:For Appellant: Ravi Kasliwal, Adv. and For Respondents: Shailesh Prakash Sharma, Adv.
Judges:J.K. Ranka, J.
Issue:Code of Civil Procedure, 1908 (CPC) - Section 21
Judgement Date:February 03, 2017
Court:Rajasthan High Court
 
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Judgment:

J.K. Ranka, J.

  1. The instant second appeal is directed against judgment and decree dt. 14.9.2016 passed by Additional District Judge No. 5, Kota, in Civil Appeal No. 17/2011, whereby the judgment and decree passed by the trial court has been affirmed.

  2. The brief facts noticed for disposal of the appeal are that Gendi Lal, grandfather of the appellant and respondent, was the owner of disputed property and the entire property was gifted to his son Kalyan. Kalyan had two sons, namely Nathulal and Kishanlal, and the present appellant and respondent are sons of Nathulal and are real brothers. Kalyan executed his first will in favour of Gopal, Rajesh and Kanhaiyalal on 4.2.1970. On 3.3.1983 Kalyan executed his second will in favour of the present appellant and respondent Gopal Bagdi and Om Bagdi and cancelled the earlier will dt. 4.2.1970. Kalyan executed his third will which is registered on 11.6.1985 in favour of the respondent Om Bagdi and it is claimed that this is the last will executed by Kalyan. Kalyan allegedly executed a document dt. 16.9.1985 (Exhibit A.1) whereby he cancelled the will dt 11.6.1985 and agreed to sell the property to the present appellant. Respondent Om Bagdi filed a suit for possession and mesne profits on the basis of will Exhibit-1, dt. 11.6.1985 and thereupon in the proceedings Gopal Bagdi, appellant, produced alleged document Exhibit-A.1 by which the will dt. 11.6.1985 as aforesaid had been cancelled and it was claimed that the property was sold to the appellant by Kalyan, however, the trial court taking into consideration the material facts and evidence on record after hearing both sides, decreed the suit and held that the alleged subsequent document Exhibit-A.1 dt. 16.9.1985 was forged and fabricated and assigned reasons as well, in reaching to the aforesaid conclusion.

  3. The matter was assailed before the appellate court which also upheld the finding reached by the trial court and thus by way of concurrent finding by both the courts below, the suit was decreed.

  4. On the basis of the pleadings the trial court framed 9 issues including the issue of relief, DW. 1 Gopallal (defendant himself) and DW. 2 Sukhdev appeared on behalf of appellant as witness whereas PW. 1 Om Prakash Bagdi (plaintiff himself) appeared on behalf of the respondent and after taking into consideration the evidence of both sides and hearing both sides, taking into consideration the material on record, issue Nos. 1, 2, 3, 4, 5, 6, 7 and 8 were decided in favour of the plaintiff and against the defendant, and decreed the suit as aforesaid.

  5. Learned counsel for the appellant contended that the document Exhibit-A.1 dt. 16.9.1985 was executed by Kalyan and pursuant thereto the possession was handed over to the appellant and no right was conferred on...

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