Sushila vs Sharda Charan Tiwari

Heard.

The instant petition is against the order dated 13.02.2018 passed in Civil Miscellaneous Appeal preferred by the petitioner/plaintiff against the order

of the Civil Judge Class-II, Pamgarh dated 25.04.2017, whereby an application under Order 39 Rule 1 & 2 CPC was dismissed.

Learned counsel for the petitioner submits that the petitioner/plaintiff was the beneficiary under a WILL dated 14.02.2003, which was executed by

Gayatri Bai, the mother of the petitioner/plaintiff and Defendants No.1 & 2 namely Sharda Charan Tiwari and Devhuti Tiwari, respectively, whose

name though was mutated and subsequently deleted they sold the property to Pradeep Kumar and Dhirajram Bhardwaj and were trying to disturb the

possession of the plaintiff, who is in the possession of the suit property.

Perusal of the order of the trial Court would show that the WILL whereby the title is claimed by the plaintiff was not placed before the Court

below. Consequently, the trial Court has held that since the WILL has not been produced, therefore, it cannot be said that the property has been

bequeathed in favour of the petitioner/plaintiff. Before this Court a copy of the WILL has been placed along with the copy of the order of SDO.

Apparently it appears that it was not placed before the Court below while the injunction application was adjudicated, therefore, the Court held that the

plaintiff was unable to prove the fact that he has prima facice case in his favour. As has been stated before this Court that the evidence has not taken

and the defendants are trying to disturb the possession of the plaintiff, the plaintiff in the facts of this case shall be at liberty to place the WILL and the

necessary document, whereby the ownership of the land is being devolved on the plaintiff as claimed and may revive his application under Order 39

Rule 1 & 2 CPC afresh before the Court below. The trial Court on such application being filed shall adjudicate the same, on its own merits, by taking

into the nature of document so placed before the Court. It is further ordered that if such application under Order 39 Rule 1 & 2 CPC is filed

subsequently, the trial Court shall decide the same afresh without being influenced by the earlier rejection.

With such observation, the petition stands disposed of.