Noor Mohammad Vs Sadiken and Ors.

The present second appeal is directed against the concurrent findings of the Courts below. The plain$ff (appellant before this Court), Noor Mohammad, filed a suit for declara$on and consequen$al relief of permanent injunc$on, which was dismissed by the trial Court on 30.03.2018. The first Appellate Court affirmed that judgment, and dismissed the appeal on 27.02.2024.

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For clarity, the par$es will be referred to according to their status in the trial Court.

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3.1 Dispute pertains to the estate of one Alaudeen resident of Village Kot Basawa Singh, Tehsil Chhachhrauli, District Yamuna Nagar. Said Alaudeen was married to defendant No.1 Sadiken. Admi7edly, the couple did not have any issue.

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3.2 The case of the plain$ff Noor Mohammad i.e. appellant herein is that he is the adopted son of Alaudeen & defendant No.1 Sadiken, and had been adopted about 40 years ago in the presence of respectables and that necessary religious ceremonies were performed at that $me and ever since then, he had been treated as a son by Alaudeen and his wife-

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NEETIKA TUTEJA 2025.12.05 13:45 I attest to the accuracy and integrity of this document

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RSA-2766-2024 (O&M)

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defendant No.1.

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3.3 Plain$ff further pleaded that Alaudeen had executed a Will dated 10.08.1997 regarding his property and that a<er the death of Alaudeen on 30.10.1997, he (plain$ff) became owner in possession of the suit property regarding which muta$on No.662 was sanc$oned on 29.05.2011. It was alleged further that defendant No.1, on the ins$ga$on of her nephews got muta$on No.820 sanc$oned in her favour regarding the suit property and therea<er, sold the same to defendant Nos.2 and 3 by virtue of sale deed dated 02.07.2012.

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3.4 Plain$ff sought decree of declara$on to be owner in possession of the suit property; and challenged the muta$on in favour of defendant No.1 and subsequent sale made by her in favour of defendant Nos.2 and 3 to be null and void.

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Defendant Nos.2 and 3 contested the suit and denied the plain$ff to be adopted son of Alaudeen. The original Will was not produced before the trial Court and as such, trial Court held the Will to be not proved in accordance with law. The muta$on in favour of defendant No.1 regarding the estate of Alaudeen was held to be valid. The sale in favour of defendant Nos.2 and 3 was also held to be valid and genuine. Suit was accordingly dismissed.

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Before the first Appellate Court, an applica$on under XLI Rule 27 CPC was moved to prove the Will by way of secondary evidence. The said applica$on was declined. On merits, the findings returned by the trial Court were affirmed and the appeal was accordingly dismissed.

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Assailing the findings, it is contended by learned counsel that original Will of Alaudeen was produced by the plain$ff before the concerned Area Patwari for entering the muta$on; that said Halqa Patwari was examined during evidence as PW-4, who brought the muta$on

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NEETIKA TUTEJA 2025.12.05 13:45 I attest to the accuracy and integrity of this document

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proceedings but did not produce the Will and therefore, the Appellate Court commi7ed error in declining the permission to the plain$ff-appellant to prove the Will by way of secondary evidence. It is further the conten$on of learned counsel that a7es$ng witnesses to the Will duly proved due execu$on of the Will by Alaudeen and that Courts below wrongly discarded their tes$mony. Besides, there was ample evidence to prove that plain$ffappellant was the adopted son of Alaudeen. With these submissions, prayer is made for seHng aside the judgments and decrees of the Courts below and to decree the suit, by allowing this appeal.

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Having gone through the en$re paper-book and the reasoning given by the Courts below, this Court does not find any merit in the appeal.

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It is not disputed that original Will dated 10.08.1997 as propounded by the plain$ff was not produced during evidence. According to plain$ff, the Will was produced before the Area Patwari for entering the muta$on, who was also examined as PW-4 before the trial Court and who produced the muta$on proceedings.

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Perusal of the record would reveal that though PW-4 Halqa Patwari summoned by the plain$ff brought the summoned record i.e. muta$on No.662, Rapat Roznamcha Waqya$ for the year 2000-01, rapat No.210 (Ex.P2) and proved the cer$fied copy of the muta$on No.662 as Ex.P-1 and stated that muta$on was entered on the bases of Will dated 10.08.1997 but he remained silent regarding the original Will. As has been observed by the first Appellate Court, neither in his examina$on-in-chief nor in cross-examina$on, the witness stated even a single word about the existence of the original bill. Even the plain$ff did not put any ques$on to the witness regarding the Will. In these circumstances, learned Appellate Court rightly held that pre-requisite condi$on about existence of the Will remained unestablished on the record and therefore, the permission to

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NEETIKA TUTEJA 2025.12.05 13:45 I attest to the accuracy and integrity of this document

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prove the will by way of secondary evidence, has been rightly declined.

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Without holding so but assuming for the sake of arguments that permission to prove the Will by way of secondary evidence should have been granted, even then plain$ff-appellant failed to prove the due execu$on of the Will as per law. As no$ced by the trial Court, plain$ff examined the two a7es$ng witnesses namely Kirtan Singh as PW-2 and Karam Singh, Nambardar as PW-3. However none of these witnesses tes$fied that they had seen the executant affixing his signature or thumb mark to the instrument of WIll. They did not even state that each of them had signed the instrument in the presence of the executant.

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In view of the aforesaid circumstances, the Appellate Court rightly concluded that even if the non-produc$on of the original Will be ignored, the due execu$on of the Will was not proved.

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Apart from above, though plain$ff claimed to have been adopted by Alaudeen about 40 years ago but no cogent evidence to prove this adop$on was produced. It was no$ced by the Appellate Court that in the documents relied by the plain$ff included Rapat Roznamcha Waqya$ for the year 2000-01, the name of plain$ff was described as ‘Noor Mohammad son of Rashid’; and ‘not as Noor Mohammad son of Alaudeen’. There was no averment regarding the date of alleged adop$on. In these circumstances, it has been rightly concluded by the Courts below that alleged adop$on of the plain$ff by Alaudeen and his wife-defendant No.1, was not proved on record.

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In view of the en$re discussion as above, this Court does not find any ground to disturb the well-reasoned findings of facts recorded by the Courts below, which are found to be based on proper apprecia$on of evidence on record and the legal posi$on.

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NEETIKA TUTEJA 2025.12.05 13:45 I attest to the accuracy and integrity of this document

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No merits. Dismissed.

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All the miscellaneous applica$on(s), if any, stand disposed of.

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(DEEPAK GUPTA) JUDGE December 04, 2025 Nee$ka Tuteja Whether Speaking/reasoned Yes/No Whether Reportable Yes/No