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17/08/2022 Heard.

1. Present appeal is filed by the appellant/plaintiff against the judgment and decree dated 28th November 2016 passed by the learned First Additional District Judge, Bilaspur in Civil Suit No.1A/2013 whereby the suit preferred by the appellant/plaintiff was dismissed. 2 (a) Brief facts of the case are that the appellant/plaintiff filed a suit interalia stating that the suit house bearing No. C-346 (New Number-

203) situated at Mouja Juna Bilaspur, Krishna Nagar Ward No. 27, Bilaspur area 55 x 27 = 3500 sq.ft. which is surrounded by four corners namely by house of Santsoh Sharma in the north, Road in the South, house of Late Adhari Lal Soni in the East, as Gend Ram Sao Marg in the west. The suit house was owned by the testator-Late Atmaram Gupta who died on 03.12.2004. The suit house was constructed by Late Atmaram Gupta who resided over there till his life time. It is pleaded that late Atmaram Gupta had executed a registered WILL dated 28.11.2003 in favour of the plaintiff with respect to the suit house and agricultural land situated at village Mouja Lagra PH. No. 18 R.I. Circle Bilaspur, Tahsil and District Bilaspur. It was further pleaded that after the death of Atma Ram Gupta, the plaintiff became owner of the suit house and came into possession of the same. The defendant No.1 Girish Chand Gupta was residing separately during the life time of Atmaram Gupta and was residing at Narmada Nagar, Bilaspur and never resided in the suit house. It was further pleaded by the plaintiff that when the dispute arose between the parties on the issue of execution of WILL, the appellant/plaintiff filed a civil suit bearing No. 34-A/2010 in the Court of 8th Civil Judge, Bilaspur however, the plaint was rejected under Order VII Rule 11 CPC and presently appeal is pending before the Vth Additional District Judge, Bilaspur. 2(b). It was further pleaded that even after having knowledge of the WILL, the defendant Nos.1 & 2 had moved an application for mutation of their names in the municipal records before the Municipal Corporation i.e. defendant No.3. On the basis of such application of the defendant No.1, the defendant No.3, the Corporation had passed the mutation order on 15.12.2010 in favour of defendant Nos.1 and 2. It is stated before passing such mutation order, no notice was ever served upon the plaintiff therefore, the mutation order dated 15.12.2010 is vide ab-iniitio and not binding upon the plaintiff. It is further stated after getting the mutation order in his favour, the defendant No.1 tried to take possession of the said house in the month of July 2011 and was trying to alienate the suit house. It is stated when the appellant/plaintiff came to know about the said mutation order the action of the defendants was challenged by publishing a general notice in the daily newspaper on 29.07.2011. It is also pleaded that despite service of notice upon the defendant No.3 under Section 401 of the Municipal Corporation Act 1956, no action was taken by them to set aside the mutation order dated 15.12.2010. Thus, the instant suit was filed by the plaintiff for declaration of the title and permanent injunction against the defendants on the basis of WILL dated 28.11.2003.

3 (a). After service of summons upon the defendants, the defendant No.1 filed his written statement and denied the plaint averment and submitted that the suit house is situated over a part of abadi bhoomi at Juna Bilaspur, bearing Khasra No.12, admeasuring 24.924 hectare. It was stated the suit house exists from the time of their grand father/great grand father. It was denied that the testator-late Atmaram Gupta alone was the exclusive title holder of the suit house to bequeath it by WILL and the defendants No.1 & 2 are title holder in possession of the suit house since their birth. The execution of WILL dated 28.11.2003 by Atmaram Gupta was also denied and it was submitted the family settlement deed dated 12.05.1997 was suppressed and plaintiff himself has prepared the WILL dated 28.11.2003 and obtained signature of the testator-Atmaram Gupta over the WILL forcefully. It was stated the language of the WILL reflects that it was not prepared in a single sitting but the same was prepared after taking sufficient time after consideration of the various aspects. It was stated the testator-Late Atmaram Gupta was not having good health and was suffering from diabetes and was in weak mental condition at the time of execution of WILL. The WILL is also challenged on the ground that the witnesses to the WILL were the brother of the appellant/plaintiff and his friend as such were interested witnesses. 3(b) Further it is pleaded that the names of the witnesses of WILL namely Rashish Kumar Gupta and Kamlesh Namdeo, were written by a pen. It was also denied that after the death of Atma Ram Gupta on 3.12.2004, the plaintiff became the title holder of the suit house. It was pleaded that the defendant No.1 was/is the joint title and possession holder of the suit house along with the others. It was stated that he was residing in another house due to the routine quarrel of appellant/plaintiff and defendant No.2. The defendant No.1 had further submitted that the Civil Suit No. 34-A/2010 was dismissed by the 8 th Civil Judge Class II Bilaspur and the Civil Appeal No. 28-A/2011 was also dismissed on 22.03.2012 when the defendant No.3 raised a demand of arrears of property tax from the defendant No.2 then the defendant No.2 had stated that the tax would be paid by the defendant No.1 because he was in possession of the suit house. It was stated the mutation order is legal and is in accordance with law. It was pleaded the appellant/plaintiff was also apprised about mutation through the daily newspaper. It was stated the appellant/plaintiff is not the owner of the suit house and she along with her husband with the collusion of each other had filed the suit to deprive the defendant No.1 from the property. It was further submitted that the suit house is his ancestral property and defendants No.1 and 2 are the exclusive owner of the suit property.

5. The defendant No.3/Municipal Corporation, Bilaspur has also filed its written statement separately with respect to the instances of the mutation proceedings. It is submitted by defendant No.3 that on 24.09.2010 an application for mutation was filed by defendant No.1 upon which a proclamation (ishtehar) was published on 24.09.2010 in daily newspaper Nai Duniya. No Objection was filed by the appellant/plaintiff nor any WILL of the year 2003 was filed therefore the mutation order was passed in accordance with the law. Defendant No.3 confined these submissions in the written statement to the extent of mutation proceedings only.