Umakant Chaturvedi and 3 Others Vs Shiva Kant and 10 Others

Neutral Citation No. - 2025:AHC-LKO:38595

Court No. - 8

Case :- SECOND APPEAL No. - 122 of 2025 Appellant :- Umakant Chaturvedi And 3 Others Respondent :- Shiva Kant And 10 Others Counsel for Appellant :- Ghufran Hussain

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Alongwith

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Case :- SECOND APPEAL No. - 124 of 2025 Appellant :- Ravi Shanker Chaturvedi And 2 Others Respondent :- Shiv Kant And 4 Others Counsel for Appellant :- Ghufran Hussain

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Hon'ble Jaspreet Singh,J.

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The instant two second appeals arise out of the judgment and decree passed in two Regular Suits No.634 of 2001 and 732 of 2002 wherein the leading suit bearing No.634 of 2001 was dismissed and the connected Regular Suit No.732 of 2002 was decreed by judgment and decree dated 25.05.2012.

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Being aggrieved, the appellants preferred two regular civil appeals bearing No.61 of 2012 and 64 of 2012 and both the appeals were dismissed by a common judgment and decree dated 21.03.2025 which have been assailed in the instant two second appeals. Since both the second appeals involve similar question of law and fact, hence they were connected and have been heard together for the purposes of admission.

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The dispute between the parties relate to the property in question bearing Municipal No.C-435, Civil Line, Maal Godam Road, District Barabanki. The present three appellants, namely, Ravi Shankar Chaturvedi, Vijay Shankar Chaturvedi and Saurab Chaturvedi as plaintiffs had filed the suit before the

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Civil Judge (Senior Division), Barabanki which was registered as Regular Suit No.634 of 2001 seeking a decree of permanent injunction against Shiva Kant, Shashi Kant, Radhey Kant, Surya Kant and Vishnu Kant with the averments that the plaintiffs were the owner in possession of the said house claiming title on the basis of a Will executed by Raj Kumar who was undisputedly its owner.

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In the plaint, it was pleaded that the plaintiffs were the owners of the said property having received the same in terms of a Will dated 26.07.2001 executed by Raj Kumar. The said suit came to be contested by the defendants denying the factum of the Will coupled with the fact that in order to assert their rights Shiva Kant, Shashi Kant, Surya Kant, Radhey Kant, Vishnu Kant, Prabha Kant and Nalni Kant alongwith Smt. Bindeshwari, Smt. Mamta, Smt. Rashmit, Smt. Snehlata joined together as plaintiffs and filed a suit for possession against Uma Kant, Ravi Kant Chaturvedi, Vijay Shankar Chaturvedi and Saurab Chaturvedi and this suit came to be registered as Regular Suit No.732 of 2002.

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In the said suit, it was pleaded that the property i.e. House No.C-435, Civil Line, Maal Godam Road, District Barabanki was the property of Raj Kumar and upon his death it had devolved on the plaintiffs of Suit No.732 of 2002 and since the defendants of the suit were occupying the same without any authority and rather they started claiming on the property on the basis of an alleged Will said to have been executed by Raj Kumar and filed a civil suit hence a decree for possession was claimed. It is in the aforesaid backdrop that the two suits No.634 of 2001 and 732 of 2002 were consolidated.

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In so far as the Regular Suit No.634 of 2001 is

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concerned, the trial court framed the issues wherein the two major issues were whether the plaintiffs of Suit No.634 of 2001 were the owners in possession thereof and whether Raj Kumar had executed any Will in favour of the plaintiffs.

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As far as the other Regular Suit No.732 of 2002 is concerned, the trial court framed issues separately wherein the two important issues were whether the plaintiffs of Suit No.732 of 2002 were the owner on the basis of succession and whether the defendants had taken possession of the said house illegally.

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The parties led their evidence and the trial court concluded that admittedly the property belonged to Raj Kumar. The Will as propounded by the appellants (herein) could not prove the Will as the witnesses turned hostile and it was also noticed by the trial court that after the death of Raj Kumar, the plaintiffs of Regular Suit No.732 of 2002 were the only legal heirs and in absence of any alleged Will they succeeded to the properties.

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It was also noticed that the defendants of Regular Suit No.732 of 2002 were granted the rights to remain in the properties which was merely in the nature of permissive occupation hence they were directed to handover the possession to the plaintiffs.

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With the aforesaid findings, the trial court vide its judgment and decree dated 25.05.2012 dismissed the suit of the appellants bearing Regular Suit No.634 of 2001 and decreed the suit of possession filed by the respondents herein bearing No.732 of 2002.

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The first appellate court considering the aforesaid facts and after hearing the parties affirmed the judgment and decree passed by the trial court, as a consequence, two appeals preferred by the appellants were dismissed by means of judgment and decree

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dated 21.03.2025 and in the aforesaid backdrop, the two appeals are now before this Court.

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Shri Ghufran Hussain, learned counsel for the appellants for the purposes of admission has urged that the facts indicating that the property in question belonged to Raj Kumar who was the grand-father of the appellants. Since it was the appellants that used to take care of him and they were residing with him, hence being pleased by the services of the appellants, he had executed a Will dated 26.07.2001 in favour of the appellants. The Will was executed at the time when Raj Kumar was hospitalized and in the given circumstances, he bequeathed the said house to the appellants. As far as his remaining properties are concerned, the same were with the respondents.

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It was further urged that it was an admitted case that the plaintiffs are in possession of the properties in question and even though the Will may not have been proved but the fact remains that since the plaintiffs were admittedly in possession, hence the suit for injunction filed by the appellants bearing Regular Suit No.634 of 2001 should have been decreed and the same could not have been dismissed and the suit for injunction should have succeeded and this aspect had not been noticed by the trial court as well as the first appellate court.

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Learned counsel for the appellants had further urged that though the appellants were claiming rights on the basis of Will of Raj Kumar and as per law the Will may not have been proved but the statement of the attesting witnesses indicate that they admitted that the Will had their signatures as well as the signatures of the testator.

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Elaborating his submissions, it was urged that the attesting witnesses did not dispute the fact that they

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had not put their signatures. Once the signatures were admitted and the character of the document came into question and the Will may not have been proved in accordance with law but in terms of Section 3 of the Evidence Act, a document not proved and does not mean that the document was disproved.

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Learned counsel for the appellants has further urged that once the plaintiffs had filed the suit for injunction claiming rights on the property in question on the basis of the Will of Raj Kumar which was known to the respondents, it was their duty to have assailed the Will. However, they did not challenge the said Will and in absence of any challenge to the Will, the suit of the plaintiffs-appellants could not have been dismissed nor the suit of the defendants, for possession, could have been decreed as it was incumbent upon them to have sought cancellation of the Will. It is in the aforesaid circumstances, it is urged that both the courts have grossly erred in dismissing the suit for injunction and decreeing the suit of the respondents for possession.

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The Court has heard the learned counsel for the appellants and also perused the material on record.

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Apparently, the record indicates that it is an undisputed fact that the property in question belonged to Raj Kumar. However, what is relevant to notice that Raj Kumar had given in adoption one of his sons namely Uma Kant to one Bindeshwari Prasad. The present appellants are the sons of Uma Kant. This is not disputed between the parties that Raj Kumar had given his son Uma Kant in adoption to Bindeshwari Prasad. This is an important fact for the reason that once Uma Kant had been given an adoption to Bindeshwari Prasad and the appellants being sons of Uma Kant, then their claim that they are the grand

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children of Raj Kumar is not correct as in law they would be the grand children of Bindeshwari Prasad.

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Another undisputed fact that emerges from the record is that since Uma Kant had been given in adoption to Bindeshwari Prasad then the present appellants could not come in the line of succession of Raj Kumar, except if Raj Kumar would have diverted his line of succession by executing a Will.

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The record further indicates that the plaintiffs of Regular Suit No.732 of 2002 (who are the legal heirs of Raj Kumar) have stated that on the pretext of taking a place for education, the appellants herein had entered into the property. It is also evident to note that the Will which have been claimed by the appellants dated 26.07.2001 was executed in the hospital premises of S.G.P.G.I., Lucknow. The copy of the Will has been brought on record as annexure no.3 indicates the aforesaid fact. The Will is unregistered, it contains a recital that the appellants are his grand children, but this fact is incorrect. The attesting witnesses, namely Babu Lal Sharma and Madhuri Tiwari also could not prove the due attestation and execution of a Will. Now the law is too well settled to be disputed that any person who propounds a Will, it is his duty to prove the due execution and attestation of the Will in light of the provisions contained under section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act.

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It is not disputed by the appellants that the attesting witnesses retracted their statements and turned hostile. Both the witnesses gave contradictory statements, they also stated that text of some part of the Will was not in their knowledge. One of the attesting witnesses also stated that their signatures were obtained on blank piece of paper and later Will

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came to be written. It is an admitted fact that the plaintiffs could not prove the Will in accordance with law as contained in Section 68 of the Indian Evidence Act.

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The submission, that other corroborative facts and surrounding circumstances should have been taken into consideration while arriving at a finding that the plaintiffs did have some rights in the property is patently erroneous. The plaint of Regular Suit No.634 of 2001 clearly indicates that the plaintiffs in para one pleaded that they are the owner in possession on the basis of the Will.

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There is a difference in a suit for injunction where the a party claims on the basis of his possession and in such cases the issue is only in context with the possession of the plaintiffs but where the parties plead possession on the basis of ownership then it is incumbent upon the plaintiffs to prove both his title and possession.

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In the instant case, since the plaintiffs was claiming rights in the property on the basis of a Will and admittedly the Will was not proved the trial court could not have allowed the injunction as the Will was not proved and the necessary consequence was, that the property vested with the heirs of deceased Raj Kumar who would be it is rightful owners and they had filed a suit for possession which was consolidated hence in the aforesaid circumstance the injunction could not have been granted against the true owners.

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A feeble plea was also raised by the learned counsel for the appellants that some of the respondents were not the legal heirs of Raj Kumar that being so the same ought to have been contested before the two courts below and then appropriate relief

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should have been sought. Mere suit for injunction despite knowing the fact that the defendants had already disputed the Will and they were claiming possession of the property against the appellants on the basis of succession, in such circumstances, it was incumbent upon the appellants to have sought a decree of declaration of their rights.

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In this regard, the observations of the Apex Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by Lrs. & others (2008) 4 SCC 594 become relevant and the Apex Court had clearly delineated the circumstances wherein a suit for injunction would be maintainable and where the declaration of rights would be required alongwith the relief of injunction.

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Since in the instant case, admittedly, the property belonged to Raj Kumar and his Will as alleged by the plaintiffs could not be proved thus no right could accrue to the appellant. Then necessarily, the consequence would be that as per the succession, the legal heirs of Raj Kumar would inherit the property upon death of Raj Kumar. Moreover, they had filed a suit for possession against the appellants and there being no real dispute regarding the rights of the heirs of Raj Kumar here, their title suit for possession was rightly decreed and the suit for injunction filed by the appellants was rightly dismissed, for the reasons noted above.

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As far as the plea raised by the learned counsel for the appellants that even though the Will was not proved, does not mean that it was disapproved his argument is misconceived and is noted only to be rejected.

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This Court is satisfied, that the judgment and decree passed by the two courts, do not suffer from any palpable error which may persuade this Court to

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interfere in this findings of facts. Accordingly, both the second appeals do not involve any substantial question of law as proposed by the learned counsel for the appellant.

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Accordingly, both the second appeals are dismissed at the admission stage. Judgment and decree dated 25.05.2012 in Regular Suits No.634 of 2001 and 732 of 2002 and affirmed in Regular Civil Appeals No.61 of 2012 and 64 of 2012 dated 21.03.2025 are upheld. Costs are made easy.

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Order Date :- 8.7.2025 ank

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Digitally signed by :- ALI NEWAZ KHAN High Court of Judicature at Allahabad, Lucknow Bench

Umakant Chaturvedi and 3 Others v. Shiva Kant and 10 Others

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Umakant Chaturvedi and 3 Others v. Shiva Kant and 10 Others

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