Mohar Say And Ors vs Ramdayal And Ors

Sanjay K. Agrawal, J

Heard on admission and formulation of substantial question of law in this second appeal preferred by the defendant under Section 100 of CPC.

Plaintiff - Rukni Bai filed a civil suit for declaration of title and restoration of possession of the suit land from defendant No. 8 - Mohar Say, which was eventually decreed by the trial Court on 19/09/1994, against which defendant No. 8 preferred first appeal before the first appellate Court. During the pendency of the first appeal, Rukni Bai died on 13/01/1998. In the said appeal, defendant No. 8- Mohar Say filed a will deed dated 10/12/1997, and claimed that Rukni Bai had bequeathed the suit property in his favour. The copy of the will deed was produced by defendant No. 8- Mohar Say before the first appellate Court under Order 41 Rule 27 of the CPC but learned first appellate Court dismissed his application and the will deed was not taken on record and thereafter, the appeal was also dismissed on merits by its judgment and decree dated 29/01/2005 against which this second appeal has been preferred by defendant No. 8 - Mohar Say.

Mr. Ashok Kumar Shukla, learned counsel for the appellant/defendant would submit that since suit property has already been bequeathed by Rukni Bai in favour of the appellant herein i.e. Mohar Say (now, his legal representatives), therefore, they may be allowed to withdraw this second appeal with liberty to proceed further as and when cause of action arises in their favour.

Since, the appellants/defendant No. 8 - Mohar Say (now, his legal representatives) claim that the suit property has already been bequeathed in his favour by Rukni Bai and learned first appellate Court has not permitted him to put the will deed dated 10/12/1997 on record, therefore, the appellants are permitted to withdraw this second appeal with liberty to proceed as per law, as and when cause of action so arises, the appellants herein are free to establish the will in his (Mohar Say's) favour by Rukni Bai in accordance with law, which will be decided by the jurisdictional Court, without being prejudiced by any of the observations made in the impugned judgment and decree, as the application under Order 41 Rule 27 of the CPC itself was dismissed without taking the will deed on record and without giving opportunity to the appellant i.e. Mohar Say to establish the will in his favour.

Accordingly, the second appeal stands dismissed as withdrawn with the aforesaid liberty reserved in favour of the appellants herein. No order as to cost(s).