1 2025:CGHC:50433 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 1 of 2006 1. Kiratmal aged about 55 years, S/o Bachuchumal, R/o Naharpara, Raipur. ... Appellant/Plaintiff versus 1. Shanti Bai Wd/o Basamal, aged about 72. 2. Parasram, aged 38 years. 3. Vidyabai, W/o Parasram, aged about 36 years. 4. Sangeeta, aged about 28 years. 5. Pari, aged about 31 years. 6. Babita, aged about 26 years. All R/o House No.9/11, Banjari Road, Dauoli, Golbazar, Raipur (CG) ... Respondents For Appellant : Mr. YC Sharma, Sr. Advocate with Mr. Sameer Rizvi, Advocate. For Respondents : Mr. B.P. Sharma, Advocate with Mr. ML Sakat & Ms. Nidhi Tiwari, Advocates. Hon'ble Shri Justice Parth Prateem Sahu Judgment on Board 9/10/2025 1. Plaintiff-appellant has filed this first appeal being aggrieved by judgment dated 31.8.2025 passed in Civil Suit No.22A/2005 by which learned 9th Additional District Judge (FTC) Raipur non-suited the plaintiff by dismissing the suit. SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI 2 2. Facts leading to filing of this appeal are that the plaintiff filed a civil suit against defendants for vacant possession of house bearing No.12/11 (New No.9/11) situated at Daal Oli, Banjari Chowk Road, Raipur (for short ‘the disputed house’) and damages for wrongful use and occupation of the disputed house by defendants at the rate of Rs.2,000/- per month. It was pleaded by plaintiff that disputed constructed house was purchased by plaintiff from Jairamdas vide registered sale deed dated 2.11.1991 for Rs.1,90,000/-. Father of said Jairamdas had executed a Will deed in his favour in respect of 1st and 3rd floor of disputed house. Initially, Jairam and Danumal were joint owners of disputed house, but after partition taken place between them on 29.3.1975, Jairamdas received 1st , 2nd & 3rd floor including stairs in share. After purchase of disputed house, plaintiff came into possession and got mutated his name in records of Municipal Corporation. On 16.10.1992 defendants by breaking open lock of house illegally came into possession of the disputed house. Plaintiff served notice to defendants asking them to vacate the suit house and to hand over vacant possession, however, in spite of service of notice, defendant did not deliver vacant possession. By way of amendment it was pleaded that plaintiff filed an eviction suit and for recovery of arrears of rent against one 3 Ramesh Motwani, who was tenant in disputed house, which came to be registered as C.S. No.235A/1995 and the same was decreed in favour of the plaintiff vide judgment dated 18.12.1997. Eviction suit in respect of another tenant was also filed by plaintiff and during pendency of suit, said tenant vacated the first floor of disputed house and handed over the vacant possession to the plaintiff. However, defendants illegally trespassed said portion of disputed house by breaking open the lock and forcibly took possession. 3. Defendants/respondents herein upon service of summons appeared before the trial Court, filed written statement denying the averments made in plaint. It was pleaded that on the basis of Will Deed dated 4.1.1975, which was last Will of Danimal, executed in favour of deceased defendant No.1 Bashamal and Santram, they are owners and in possession of disputed house. As such, plaintiff has not derived any right or title over the house in question from the sale deed dated 2.11.1991 because said Jairam das does not have any right to sell the house in question. No partition of disputed house took place on 29.3.1975 nor any share had been received by said Jairamdas. House in question was self earned property of Danumal and therefore, question of partition does not arise. Danumal had not executed any Will Deed on 31.1.73 in favour of Jairamdas. Civil suit challenging Will Deed (Ex.P-5) 4 is pending consideration. Plaintiff was never in possession of the disputed house. Mere mutation of name in records of Municipal Corporation does not create title in favour of plaintiff. Defendants are in possession of house on the basis of last Will Deed and not in illegal possession. 4. On the pleadings of the parties, learned trial Court framed as many as five issues and on appreciation of evidence, oral and documentary adduced by respective parties, decided the suit against the plaintiff vide impugned judgment. Learned trial Court has held that this fact is not yet determined that the Will Deed Ex.P-5 executed in favour of plaintiff was the last and final Will validly made by Danumal, therefore, unless title based on Will Deed of Ex.P-5 is not decided by the competent Court, it cannot be held at this stage of proceeding that Jairamdas was not title holder or owner of the disputed house on the date of execution of sale deed dated 2.11.1991 (Ex.P-1) in favour of plaintiff. It was further held that as Will Deed dated 31.1.1973 (Ex.P-5) executed in favour of plaintiff is challenged by defendants, therefore, until decision of said matter, attested Will Deed (Ex.D-2) executed in favour of defendant cannot be said to be illegal. It was further held by learned trial Court that even if Danumal died intestate, said Jairamdas,Santram and Basamal being ‘A’ class category heirs succeeded the property as successors. Basamal during 5 his lifetime has challenged the Will Deed (Ex.P-5) available with Jairamdas before the competent Court and hence the defendant No.1 to 6 are in possession of disputed house through Basamal, as his legal heirs. Therefore, it appears that the possession is based on title and they cannot be put to category of encroacher in any manner. Thus, the possession of defendants over disputed house is not illegal. With reference to sale deed dated 2.11.1991 executed in favour of plaintiff, it was held that since the plaintiff decided to purchase the disputed house despite having knowledge about pendency of dispute between Basamal and Jairamdas (seller) for cancellation of Will Deed, therefore, as of now, neither plaintiff can be delivered possession of disputed house nor can be he declared owner because the title and ownership of Jairamdas itself is in shadow of doubt. No better title can be transferred by seller then what he possess. Plaintiff cannot be declared owner based on sale deed dated 2.11.1991 nor he is entitled for possession. 5. Learned Senior Counsel for the plaintiff/appellant would argue that learned trial Court erred in arriving at conclusion that plaintiff is not the owner of disputed house. He submits that plaintiff/ appellant had acquired title over the suit house by way of registered sale deed dated 2.11.1991 executed by Jairamdas, who became owner of the suit house based on 6 the Will Deed dated 31.1.1973 (Ex.P-5) executed in his favour by his father Danumal, and thereafter name of appellant was also mutated in municipal records. In order to submit that suit house was partitioned among Danumal and Jairamdas, possession of half portion of suit house was with Jairamdas and thereafter under a settlement, Danumal had given two shops to Jairamdas, he referred to statement of defendant No.1-Shanti Bai (DW-1). He also referred to judgment dated 13.12.1986 (Ex.P-4), delivered in a suit for partition filed by deceased defendant Basamal, wherein learned trial Court while answering Issue No.1 held that there did not exist joint family between the plaintiff and defendants therein i.e. Basamal at one hand, and Danomal, Jairamdas and Satram Das on other, on the date of filing of suit. In these circumstances, the appellant is entitled to seek eviction of defendants from suit house on the basis of sale deed dated 2.11.1991 (Ex.P-1). Thus, finding of learned trial Court that seller Jairamdas was not the owner of suit house and as such, appellant cannot be declared owner of suit house is perverse to the material available in record. He next contended that in view of pendency of dispute before the competent Court as to genuineness or due execution of Will Deeds, executed in favour of respective parties, the learned trial Court erred in holding that execution 7 of Will Deed executed in favour of appellant herein has not been duly established in accordance with law. Learned trial Court overlooked that the plaintiff has proved the preparation and registration of Will by examining its scriber and an employee from the office of Sub-Registrar where the Will was registered. 6. On the other hand, learned counsel appearing on behalf of respondents opposing the submissions made by learned Senior Counsel for appellants, would argue that defendants are in possession of the suit house under the ownership right conferred on their predecessor by Danumal vide Will Deed dated 4.1.1975, which was his last Will. Jairamdas did not have right to execute sale deed to the extent of share of defendants in suit property. He submits that Jairamdas executed sale deed in favour of plaintiff based on Will Deed dated 31.1.1973, allegedly executed by Danumal in favour of Jairamdas, genuineness of which is challenged before competent court by filing civil suit and it is pending consideration, hence, there is cloud on title of Jairamdas. Hence, at this stage, it cannot be said that plaintiff/appellant has acquired an indefeasible right over the entire suit property. In support of his submissions, he also read out Para-19 of the judgment of trial Court. Hence, there is no illegality in the judgment passed by learned trial Court 8 warranting interference in exercise of appellate jurisdiction by this Court. 7. I have heard learned counsel for respective parties and minutely perused the impugned judgment as well as the records. 8. Plaintiff has filed the civil suit seeking vacant possession of suit house from defendants on the strength of sale deed dated 2.11.1991 executed by Jairamdas. As per plaintiff’s claim in plaint, initially Jairamdas (seller) and his father Danomal were in joint occupation of the suit property since the year 1965. A mutual partition took place between Jairamdas and Danomal under which Jairamdas received ground floor portion of the house, whereas 1st, 2nd and 3rd floor of the house with staircases, had fallen in the share of Danomal. Said Danomal breathed his last on 24.4.1991, however, during his lifetime, he had executed Will Deed dated 31.1.1973 in favour of Jairamdas bequeathing his share in suit property to him and thereafter, said Jairamdas had sold the entire suit property to plaintiff vide registered sale deed dated 2.11.1991. 9. Plaintiff examined himself as PW-1, Jairamdas as PW-2, BJ Rajpal as PW-3 and Shyamji Tiwari as PW-4. Plaintiff (PW-1) has admitted in his evidence that he is aware of the fact that Danumal had executed Will in favour of Basamal (defendant) 9 and Satyaram. Jairamdas (PW-1) has simply stated in his evidence that disputed house was in the name of his father Danumal, who executed Will in his favour. B.J. Rajpal (PW-2) admitted that Will Deed Ex.P-5 was drafted by him and it bears his signature. Shyamji Tiwari (PW-4), Record Keeper of Deputy Registrar Office has stated about registration of Will Deed. 10. On the other hand, claim of defendants is that they are in possession of part of suit house on the basis of Will Deed dated 4.1.1975 executed by Danomal, in favour of his sons i.e. deceased defendant Bashamal and Santramdas, bequeathing his half share in the suit house in their favour. They denied genuineness of Will Deed dated 31.1.1973 being forged and fabricated and also filed Civil Suit No.216A/93 questioning genuineness and due execution of Will Deed dated 31.1.1973, which is pending consideration before competent civil Court. Hence, they pleaded that Jairamdas had no right to execute any sale deed as executed on 2.11.1991 in respect of 1st, 2nd and 3rd floor of the house with staircases. 11. Defendants examined Rooplal Sahu as DW-1, Smt. Shantibai as DW-2 and Kishan Rorha as DW-3. Perusal of evidence of Kishan Rorha (DW-3) reveals that he is an attesting witness of Will Deed (Ex.D-2) and as per this witness, in the year 10 1975 Will Deed (Ex.D-2) was executed and signed by Danomal in his presence and another witness namely Arjundas. 12. Learned trial Court concluded in Para-14 of the judgment impugned that since plaintiff failed to prove Will Deed dated 31.1.1973 (Ex.P-5) in terms of provisions of Section 63 of the Indian Succession Act, Section 3 of Transfer of Property Act and Section 68 of the Indian Evidence Act, the same cannot be read in evidence. 13. Defendants have denied genuineness and due execution of Will Deed Ex.P-5 by branding it forged and fabricated. They also produced Will Deed, Ex.D-2, executed in their favour by the same testator who stated to have executed Will in favour of said Jairamdas. 14. The law is well settled that the propounder of the Will is not only required to prove due attestation of the Will but also to prove the Will by removing all suspicions. It is also well settled that when more than one Will is propounded by the same testator, the one which is proved to be executed in accordance with Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, shall prevail and operate as the expression of the testator. 15. Section 63 of the Indian Succession Act read thus:- 11 "63. Execution of unprivileged wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules- (a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction. (b) the signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has been some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." 16. Section 68 of the Indian Evidence Act "68.Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for 12 the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence; Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." 17. From a conjoint reading of the provisions extracted above, it is evidently clear that a Will is required to be attested by two or more witnesses each of whom has seen the testator signing or affixing his mark on the Will or has seen some other person signing the will in presence, by the direction of the testator or has received from the testator a personal acknowledgment of the signature or mark or his signature or the signature of such other person and that each of the witnesses has signed the Will in the presence of the testator. Section 68 of the Evidence Act is against the use of a Will in evidence unless one attesting witness has been examined to prove the execution. 18. In Smt. Indu Bala Bose v. Mahindra Chandra Bose and another, reported in (1981) 1 SCC 20, the Hon'ble Supreme Court has laid down what is the mode of proof in order to dispel suspicious circumstances, and how the onus lies on 13 the propounder to explain certain circumstances. It is observed in paragraph-7 of the judgment as follows, affirming the previous decisions: "7…..If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.” 19. In Yumnam Ongbi Tampha Ibema Devi vs. Yumnam Joykumar Singh and others, reported in 2009 (4) SCC 780, Hon'ble Supreme Court had the occasion to consider the provisions of Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act and it was held as under:- “11.As per provisions of Section 63 of the Succession Act, for the due execution of a will: (1) the testator should sign or affix his mark to the will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will; (3) the will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator. 14 12. The attestation of the will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested (sic attesting) witness should put his signature on the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document. 20. In the instant case, it is clear from the record that there is no evidence to show that the testator had signed the Will Deed dated 31.1.1973 in the presence of witnesses examined on behalf of the plaintiff and they have seen the testator signing the Will in their presence. Witness examined by plaintiff in support of Will Deed is B.J Rajpal, Advocate (PW-3) and Shyamji Tiwari (PW-4), who are not the attesting witnesses. BJ Rajpal has simply stated that he has drafted the Will Deed dated 21.1.1973 (Ex.P-5) and it bears his signature. PW-4 Shyamji Tiwari, who is Record Keeper in the office of Sub Registrar, Raipur has stated about registration of Will Deed (Ex.P-5). Attesting Witnesses to said Will Deed are Mangalmal, Newanram Shivamal and Atmaram, however, for the reason best known, none of these witnesses was examined in the present case to establish the legality of said Will Deed nor any reason was assigned for not examining 15 them. As such, it is clear that execution of the Will Ex.P-5 was not proved as required under the law. If that is the position, the learned trial Court did not err in recording a finding that the Will Deed, Ex.P-5 cannot be read in evidence as the same has not been proved in terms of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. 21. That apart, from the facts and events discussed above, it is clear that plaintiff / appellant herein is claiming title over suit house through Jairamdas, who based on Will Deed dated 31.1.1973 had executed, registered sale deed on 2.11.1991 in favour of plaintiff in respect of suit house. Defendants have filed Civil Suit No.216A/93 challenging genuineness and due execution of Will deed dated 31.1.1973 on the ground that it is a forged and fabricated document and that, Will Deed dated 4.1.1975 executed in favour of deceased defendant Basamal is the last will of Late Danomal. Jairamdas is a party to said civil suit. No submission is made by either side about the outcome of civil suit and hence, it is clear that the title of Jairamdas over the suit house comes under the cloud for the reason that the authority of Jairamdas to sell the suit house would be subject to outcome of Civil Suit No.216A/93 and in case outcome of said civil suit goes against said Jairamdas, the plaintiff/ appellant will have no right, title or interest over 16 the suit house because the sale deed Ex.P-1 will become null and void. In other words, the moment, title of the seller of the house to appellant herein comes under could, it will have direct impact on the title of plaintiff/appellant herein also. Therefore, till the title of said Jairamdas, which is under cloud, is not clear, it cannot be held that plaintiff has acquired indefeasible title over the suit house on the strength of registered sale deed executed by Jairamdas. 22. True it is that name of plaintiff/appellant herein has been recorded in municipal records based on sale deed dated 2.11.1991. However, it is the settled proposition of law that mutation does not confer any title in favour of the transferee and legal title arises only upon valid execution and registration of relevant instrument. In case at hand, the authority of Jairamdas to sell the entire suit house to plaintiff/appellant is under challenge, as discussed above. Hence, at this stage, on the basis of sale deed, Ex.P-1, and mutation in municipal record, the plaintiff / appellant cannot be held entitled for grant of decree of eviction of defendants, who are also claiming possession and ownership over the suit house on the basis of Will Deed dated 3.1.1975 executed in their favour by claiming it to be last Will of Danumal. 17 23. Hon’ble Supreme Court in its various decisions including in order dated 06.09.2021 passed in SLP (civil) No.13146/2021 (Jitendra Singh v. State of Madhya Pradesh, held as under: "6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue.” 24. In case of H. Lakshmaiah Reddy v. L. Venkatesh Reddy, reported in (2015) 14 SCC 784, Hon’ble Supreme Court has held as under : "8. ... The assumption on the part of the High Court that as a result of the mutation, the first defendant divested himself of the title and possession of half- share in suit property is wrong. The mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue...” 25. For the foregoing discussion and reason, this Court is of the considered opinion that the judgment impugned rendered by learned trial Court is based on correct and proper appreciation of the facts, law and evidence, oral and documentary, so placed on record by respective parties. 18 Reasons assigned by learned trial Court for non-suiting the plaintiff/appellant herein does not appear to be contrary to material on record. 26. Resultantly, this first appeal is found to be bereft of any substance and the same is hereby dismissed. No order as to costs. Sd/- (Parth Prateem Sahu) Judge roshan/-