Sudhir Rai vs A.S.J., Court No.1

Ram Surat Ram (Maurya), J.—Heard Sri S.N. Singh, holding brief of Sri Dharmaveer Singh for the petitioners and Sri Neeraj Tiwari along with Sri Anil Kumar for the respondents.

The petition has been filed against the orders of Civil Judge (J.D.) dated 11.9.2014 and Additional District Judge dated 23.2.2016 by which in the dispute relating to substitution of heirs of Smt. Vidya Devi in Suit No.801 of 1991 the application of the petitioners has been rejected and the application of Raj Nandan and Shyam Nandan, respondents-3/1 and 3/2 has been allowed.

The Original Suit was filed by Smt. Vidya Devi through her next friend Rukmani Sevak Rai (husband) for permanent injunction restraining defendants from demolishing the construction shown in the disputed land by letters "ABCD" and interfering with her possession over it. During pendency of the suit Smt. Vidya Devi died on 5.9.1999. On the death of Smt. Vidya Devi, Rukmani Sevak Rai filed an application for his substitution as an heir of Smt. Vidya Devi. During pendency of this application Rukmani Sevak Rai also died. Thereafter the petitioners filed an application of their substitution as heirs of Smt. Vidya Devi on the basis of a will executed by Rukmani Sevak Rai dated 7.8.2007 in their favour. The other application was filed by Raj Nandan and Shyam Nandan for their substitution as heirs of Smt. Vidya Devi on the ground that Vidya Devi executed a will dated 3.1.1997 in favour of Smt. Madhuri Devi, her daughter and after the death of Smt. Vidya Devi property in dispute was inherited by Smt. Madhuri Devi, who died thereafter as such at present they are the heirs of Smt. Vidya Devi. The matter was heard by Civil Judge (Junior Division), who by order dated 11.9.2014 found that although Rukmani Sevak Rai, husband of Smt. Vidya Devi as her next friend filed the present suit for permanent injunction against the father of the present petitioners as such it is not believable that he would execute any will in favour of the petitioners. On the other hand it is not denied that Madhuri Devi was daughter of Smt. Vidya Devi and it was natural for Smt. Vidya Devi to execute the will in her favour. On this ground he rejected the application of the petitioners and allowed the application of respondents-3/1 and 3/2. The petitioners challenged the aforesaid order in revision i.e. Civil Revision No.56 of 2014, which was dismissed by the Additional District Judge by order dated 23.3.2016. Hence, this petition has been filed.

I have considered the arguments of the counsel for the petitioners.

In view of the Order 22, Rule 5 ,C.P.C. it is the duty of the court to determine heir of deceased party and while determining the heir the court below believed the will executed by Smt. Vidya Devi in favour of her daughter and disbelieved the will executed by the husband of Smt. Vidya Devi in favour of the petitioners. The reason for disbelieving the will has been shown that there has been litigation between the husband of Smt. Vidya Devi and father of the petitioners, therefore, it was not a natural conduct of Rukmani Sevak Rai, husband of Smt. Vidya Devi to execute the will in favour of the petitioners. Thus, the will set up by the petitioners was found to be a suspicious document. The reasoning given by the courts below cannot be said to be perverse and this Court in exercise of jurisdiction under Article 227 of Constitution cannot interfere with the findings of fact recorded by them.

In view of the above discussion, no interference is required by this Court. The petition is dismissed.