Afr High Court · 2025
Case Details
1 2019:CGHC:34768 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Reserved on 17-02-2025 Pronounced on 09-06-2025 FA No. 583 of 1998 1 - Dev Krishna @ Suresh Mishra (Dead) Through Lrs- As Per Hon'ble Court Order Dated 01-03-2013. 1.1 - (A) Smt. Usha Mishra W/o Late Dev Krishna Mishra, Aged About 50 Years R/o High School Road Jagdalpur, District Bastar, Chhattisgarh 1.2 - (B) Shivesh Mishra S/o Late Dev Krishna Mishra, Aged About 30 Years R/o High School Road Jagdalpur, District Bastar, Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh. 1.3 - (C) Shrish Mishra S/o Late Dev Krishna Mishra, Aged About 26 Years R/o High School Road Jagdalpur, District Bastar, Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh. 2 - Smt. Rajkali Mishra Deleted Vide Order Dated 14.12.2012. 3 - Aditya Narayan Mishra Dead Through Lrs. 3.1 - (A) Ku. Sunita Mishra D/o Aditya Narayan Mishra, Aged About 21 Years R/o High School Road Jagdalpur, District Bastar, Chhattisgarh 4 - Sanjay Mishra S/o Shri Awdhesh Narayan Mishra, Aged About 32 Years Profession Advocate R/o High School Road, Jagdalpur, District Bastar M.P. Now Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh 5 - Sailendra Mishra Dead Through Lrs. 5.1 - (A) Smt. Laxmi Mishra W/o Shailendra Mishra, Aged About 52 Years R/o High School Road Jagdalpur, District Bastar, Chhattisgarh. 5.2 - (B) Jyotirvashu Mishra S/o Shailendra Mishra, Aged About 20 Years R/o High School Road Jagdalpur, District Bastar, Chhattisgarh. 2 6 - Sailesh Mishra S/o Shri Gulab Mishra, Aged About 17 Years Minor Through Guardian Shri Gulab, R/o High School Road, Jagdalpur M.P. Now Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh. 7 - Smt. Gulab Mishra Deleted Vide Order Dated 20.09.2012 . ... Appellants/defendants versus 1 - Smt. Daulat (Dead) Through Lrs- As Per Hob'ble Court Order Dated 01-03-2013 1.1 - (A) Rishi Kumar Tiwari (Died) Through Lrs.- (As Per Hon'ble Court Order Dated 12-11-2024). 1.1.1 - (A) (I) Smt. Samiksha Tiwary W/o Late Rishi Kumar Tiwary Aged About 43 Years R/o High School Road, Jagdalpur, District Bastar, Chhattisgarh. 1.1.2 - (A)(Ii) Ku. Naisha D/o Late Rishi Kumar Tiwary Aged About 15 Years Natural Guardian Bali Mother- Smt. Samiksha Tiwary, R/o High School Road, Jagdalpur, District Bastar, Chhattisgarh. 1.1.3 - (A)(Iii) Ku. Inaya D/o Late Rishi Kumar Tiwary Aged About 8 Years Natural Guardian Bali Mother- Smt. Samiksha Tiwary, R/o High School Road, Jagdalpur, District Bastar, Chhattisgarh. 1.2 - (B) Ayush Tiwari S/o Gopal Tiwari, Aged About 12 Years Minor Through Next Friend The Cousin Brother Rishi Kumar Tiwari S/o Balkrishna Tiwari, Advocat, Aged About 29 Years, R/o High School Road Jagdalpur, District Bastar, Chhattisgarh. 2 - State Of Madhya Pradesh Now Chhattisgarh, Through Collector, Jagdalpur, District Bastar M.P. Now Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh. 3 - Ram Krishna Tiwary Dead Through Lrs.
Legal Reasoning
pray for deciding the point No. 3 and 4 framed by this Court in his favour. 24. It is admitted fact that the defendant has not filed any document to demonstrate how title has been conferred upon him and merely on the basis of revenue records he is claiming the title over the suit 21 property. This submission deserves to be rejected by this Court as it is well settled position of law that on the basis of revenue records title cannot be conferred over the immovable property and it can be determined as these revenue records are for the purposes of fiscal purposes only and mutation of the property in the revenue records does not create or extinguish title nor as it only presumptive value, it only enables the person in whose favour mutation is ordered to pay the rent of land in question. The Hon’ble Supreme Court in case of P. Kishore Kumar vs. Vittal K. Patkar reported in 2023 INSC 1009 has held as under: “11. It is trite law that revenue records are not documents of title. 12. This Court in Sawarni vs. Inder Kaur and Ors. held that mutation in revenue records neither creates nor extinguishes title, nor does it have any presumptive value on title. All it does is entitle the person in whose favour mutation is done to pay the land revenue in question. 13. This was further affirmed in Balwant Singh & Ors vs. Daulat Singh (Dead) by LRs and Ors. wherein this Court held that mere mutation of records would not divest the owners of a land of their right, title and interest in the land. 14. In Jitendra Singh vs. State of Madhya Pradesh and Ors., this Court after considering a catena of judgments, reiterated the principle of law as follows: “6. ***mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose.”” 25. Thus, the finding recorded by the learned trial Court that Baldev and his son and grand sons are licensees is legal, justified and does not warrant interference by this Court as they have failed to establish title over the suit property and in view of well settled position of law that the revenue records does not confer any title over the immovable property to a person claiming title over it. Thus, the point No. 2 and 3 answered in favour of the plaintiff and against the defendant. Discussion and finding on point No. 4: 22 26. It is quite vivid that the the plaintiff has claimed relief of injunction, ejectment of defendant from the suit property and damages on the basis of Sankalp will. The defendant No. 4 to 7 in their written statement have raised dispute about the existence of Sanklap will and raised cloud over the title of the plaintiff by stating that the suit property sheet No. 78 Plot No. 23 Area 2328 Square Feet since 1917 has been recorded in the name of Baldev Prasad Mishra as owner of the suit property, thus, it is incumbent upon the plaintiff to pray for declaration of title also. The issue with regard to maintainability of suit for injunction simplicitor is always subject of challenge before the Courts of law and the Hon’ble Supreme Court in catena of judgments has considered the issue and has held that whether the defendant is disputing title of the plaintiff and a cloud was raised then it is incumbent upon plaintiff to seek prayer of declaration. It has also been held that in such situation the Court should re-delegate the plaintiff where the matter involves complicated question of facts and law relating to title. The Hon’ble Supreme Court in case of Rajeev Gupta & Others vs. Prashant Garg & Others reported in 2025 INSC 552 has considered this issue and has held as under: “62. This Court in Anathula Sudhakar v. P. Buchi Reddy had the occasion to hold that where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction; however, where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction (emphasis supplied). 63. In Sopanrao (supra) too, the three-Judge bench reiterated the position by holding that in a suit filed for possession based 23 on title the plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land (emphasis supplied).” 27. Thus, the point No. 4 is answered against the plaintiff and in favour of the defendants and it is held that the simplicitor suit for injunction where cloud is raised regarding title of the plaintiff, the suit was not maintainable. 28. From the above stated discussion and considering the law on the subject, it is held that the judgment and decree passed by the trial Court in Civil Suit No. 2-A/1996 decided on 03-12-1998 is set aside by deciding the point No. 1 and 4 in favour of the defendant and point No. 2 and 3 in favour of the plaintiff. Consequently, the suit of the plaintiff is dismissed. 29. Accordingly, the appeal is allowed. A decree be drawn up accordingly. RAVVA SATYANARAYANA RAJU Digitally signed by RAVVA SATYANARAYANA RAJU Date: 2025.06.10 10:41:02 +0530 Raju Sd/- (Narendra Kumar Vyas) JUDGE
Arguments
3.1 - (A) Deleted (Smt. Kamla Tiwary) As Per Honble Court Order Dated 01-03-2013. 3.2 - (B) Chandra Shekhar Tiwary S/o Late Shri Ram Tiwary, Aged About 36 Years R/o Village Bastar, District Bastar, Chhattisgarh. 3 3.3 - (C) Raj Shekhar Tiwary S/o Late Shri Ram Krishna Tiwary, Aged About 32 Years R/o Village Bastar, District Bastar, Chhattisgarh. 3.4 - (D) Ranjana Tiwary D/o Late Shri Ram Krishna Tiwary, Aged About 29 Years C/o Chandrashekhar Tiwari, Junagudapara, Ward No. 6, Village Bastar, Tahsil Bastar, District Bastar, Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh. 3.5 - (E) Jaya Tiwary D/o Late Shri Ram Krishna Tiwary, Aged About 28 Years R/o Village Bastar, District Bastar, Chhattisgarh. 4 - Smt. Shivkali Dead Through Lrs. 4.1 - (A) Deleted (Vijay Kumar Shukla) As Per Honble Court Order Dated 19-05-2020 4.2 - (B) Ajay Kumar Shukla S/o Late R.A. Shukla, Aged About 38 Years C/o Chandrashekhar Tiwari, Junagudapara, Ward No. 6, Village Bastar, Tahsil Bastar, District Bastar Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh. 5 - Smt. Devkali W/o Shri R.N.Tripathi, Aged About 54 Years R/o Village Beti, District Pratapgarh U.P., District : Pratapgarh, Uttar Pradesh. 6 - Ashish Kumar Khanna M/s Himsagar, High School Road, Jagdalpur, District Bastar M.P. Now Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh. 7 - M/s Sarda General Stores, High School Road, Jagdalpur, District Bastar M.P. Now Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh. 8 - (1) Deleted (Smt. Krishna) As Per Honble Court Order Dated 01/03/13 8.2 - Shri Krishn Tiwary S/o Late Onkarnath Tiwary, Aged About 54 Years R/o High School Road Jagdalpur, District Bastar M.P. Now Chhattisgarh. 8.3 - Balkrishna Tiwary S/o Late Onkarnath Tiwary, Aged About 44 Years R/o High School Road Jagdalpur, District Bastar M.P. Now Chhattisgarh. 8.4 - Gopal Krishna Tiwari S/o Late Onkarnath Aged About 40 Years R/o High School Road, Jagdalpur, District Bastar (M.P.) Now Chhattisgarh.. 9 - Afjal Khan Nagariya Aged About 47 Years Profession Kirana Store, In Front Of High School Ground, Jagdalpur, District Bastar M.P. Now Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh. 4 10 - M/s Monalisa Beauti Parlour, In Front Of High School Ground, Jagdalpur, District Bastar M.P. Now Chhattisgarh ................Defendants, District : Bastar(Jagdalpur), Chhattisgarh ... Respondents/plaintiffs For Appellants : Mr. B.P. Sharma and Mr. H.S. Patel, Advocates. For Respondent : Mr. Prafull Bharat, Sr. Advocate with Mr. Akash 1(a). Pandey, Advocate. For State : Mr. Kishanlal Sahu, Dy. Govt. Advocate. (Hon’ble Mr. Justice Narendra Kumar Vyas) C A V Judgment 1. This is defendants’ first appeal filed against the judgment and decree dated 3-12-1998 passed by Third Additional District Judge, Bastar, Jagdalpur in Civil Suit No. 2-A/1996 by which learned trial Court has allowed the suit filed by the plaintiff for possession, eviction and mesne profits. 2. The parties have been described as per their description before the trial Court. 3. The brief facts as reflected from the record are that the original plaintiff namely Smt. Daulat Tiwari filed a Civil Suit for possession, eviction and mesne profits on 07.05.1992 before the learned Civil Judge, Class-II Jagdalpur being higher pecuniary jurisdiction transferred to learned 3rd Additional District Judge Jagdalpur on 27.01.1994 mainly contending that: (a) Plaintiff’s husband late Shivmangal Tiwari who was resident of Jagdalpur had received self acquired property from her maternal grandfather late Shri Ramharak Mishra through Sankalp Vasiyat. Since Shivmangal Tiwari was minor, his father Omkarnath 5 Tiwari/defendant No. 14 has received the property as his guardian. It is also the case of the plaintiff that defendant No. 14 solemnized marriage of his minor son with plaintiff and subsequently her husband expired during minority. After death of Shivmangal Tiwari, plaintiff possessed the property though she was also minor, as such, the defendant No.14 used to take care of the entire property and after attaining the age of majority she started looking after the property. (b) The plaintiff has also mentioned the genealogy in the plaint and has stated that as per family tree, Bhawani Prasad had one son late Ramharak Mishra who came from Allahabad to live in Jagdalpur after separated from his family and he started doing the work of Priest and has acquired movable and immovable property. Late Ramharak Mishra had only one daughter and son and his son Metairam died issue-less and his daughter namely Kailasha Devi wife of defendant No.14 has gone to Uttar Pradesh as Ramharak Mishra has become old and due to love and affection he has given the property to Shivmangal Tiwari by way of Sankalp Vasiyat and defendant No. 14 has been made guardian of Shivmangal Tiwari. (c) It has also been contended that Bhawani Prasad had two other sons namely Datadin and Surajmani who are residents of Allahabad and they have received the entire property of Bhawani Prasad as Baldev Prasad who is son of brother of Ramharak Mishra, has come to Jagdalpur for his business, he was residing separately and doing business separately, but he has not 6 acquired any property from his earnings and later on he died. It has also been contended that Baldev Prasad has four sons out of which Aditya Narayan died unmarried and issue-less and other son namely Chandrika Prasad had one son namely Devkrishna and his wife Rajbati who are defendants No. 1 and 2 and second son Avdesh’s son Sanjay Mishra (Defendant No. 4), Shailendra, Defendant No. 5, Palash, defendant No.6 and widow of late Avdesh have been arrayed as defendant No. 7 to this case. Since Shailesh is minor, therefore, he has been arrayed through his mother Smt. Gulab Mishra who is natural guardian. Defendant No. 3 is fourth son of Aditya Narayan Baldev. The defendants No. 9, 10 and 11 are respectively brother-in-laws and sister-in-law and son and daughter of defendant No. 14. The defendants No. 12 and 13 are sub-tenants of defendant No. 1 and 3 and they are getting illegal profit from the said property, as such they have been arrayed as party to the case. (d) It is also case of the plaintiff that the plaintiff is also having ownership of other immovable property which is Nazul land Sheet No. 78, situated in Jagdalpur area No. 23/1, 2, 3 wherein the defendants No. 1 to 7, 12 and 13 are license holders. It is also the case of the plaintiff that plaintiff’s maternal grandfather- in-law late Ramharak Mishra had acquired plots 22 and 23 of area 4500 sq.ft from self earning wherein possession of the said property and constructed the house have been received by Sankalp Vasiyat. It is also the case of the plaintiff that Plaintiff’s in-laws have given the house constructed at Khasra No 23 area 2328 square feet as licency to Buldev with a condition that not to 7 alter or construct, reconstruct or give it on sub rent to anyone, but subsequently, Khasra No.23 was divided in three parts and the property was given on license to Chandrika Prasad and his wife bearing Khasra No. 23/1, area 566 sq.ft. Similarly, Khasra No.23/2 measuring 606 sq.ft was given to Aditya Narayana, Khasra No.23/3 measuring 1156 sq/ft was given to Avdesh and his legal representatives who are defendants No. 4 to 7 as licensees. (e) It is also case of the plaintiff that the defendant No. 1 and 2 out of some part of Khasra No. 23/1 have constructed two shops measuring 250 sq.ft which has been given on rent as subtenant to Suresh Ahuja and are getting illegal profits. Similarly, defendant No. 3 out of Khasra No. 23/2 has constructed shop admeasuring 150 sq.ft and given on rent to defendant No. 13 and is getting illegal profits. Therefore, on account of termination of license of defendant No. 1 to 7 on the house constructed in the suit land on 05.05.1992 they have not vacated the house and handed over the possession to the plaintiff which has necessitated the plaintiff to file present suit. (f) It is also case of the plaintiff that even after service of notice regarding termination of license, the defendant has not handed over the possession and getting rent which otherwise plaintiff is entitled to get, but no action has been taken by the defendant. On the above pleadings, the plaintiff has prayed for declaration that the defendant No. 9, 10, 11 and 14 have no right of possession over the suit land. Since the license of the defendant 8 No. 1 to 7 have been terminated on 05.05.1992, the decree of eviction may be granted. It has also been prayed that the defendant No. 12, 13, 15 and 16 are not the tenants of the plaintiff, therefore, decree of dispossession be also granted and till the possession is granted Rs. 5,000/- monthly rent be also ordered against defendant No. 1 to 7, 12, 15 and 16 from the date of filing of the suit. 4. The defendants No. 1 to 5 and 7 have filed their written statement denying the fact that Ramharak Mishra had acquired some property at Jagdalpur and no self-acquired property has been given to the plaintiff by Sankalp will by Ramharak Mishra and the defendant No. 14 used to take care of the property as plaintiff’s husband was minor, being guardian of Shivmangal Tiwari. It is also denied that Ramharak Mishra was residing at Jagdalpur after being separated from his family and doing the work of priest. It is also case of the defendants that the plaintiff was never in possession of land situated at Nazul Sheet No. 78 Khasra No. 23/1, 23/2 and 23/3 and neither Shivmangal Tiwari nor defendant No.14 was in possession over suit property. In-fact, Nazul Sheet No. 78 Khasra No.23/1 area 2328 sq.ft was recorded in the name of Baldev Prasad in the year 1917 and after his death his sons defendants No. 1 to 7 were in possession of the suit property as Bhumiswami for the last 25-26 years. It is also denied that Ramharak Mishra has done any residential construction on plot No. 23. It is also denied that Baldev Prasad was given license by the in-laws of the plaintiff and also denied that any sub-tenancy was given by them and would pray for dismissal of the suit. 9 5. On the pleadings of the parties, learned trial Court has framed as many as 10 issues. The issues No. 1, 2, 3 and 6 are relevant, therefore, they are reproduced below: I. Whether the disputed property was the self earned property of Ramharak Mishra? II. Whether Ramharak Mishra had ever executed any will in favour of Shivmangal regarding the disputed property? III. Whether the disputed property was given on license to Baldev? VI. Whether the defendants No. 12, 13, 15 and 16 are liable to be evicted from the suit premises? 6. The plaintiff to substantiate his case has exhibited documents ie., certified copy of mutation deed (Ex.P/1), photo copy of registered notice (Ex.P/2), registered letter with acknowledgment without service (Ex.P/3 to P/7), power of attorney (Ex. P/8), rent register (Ex.P/9), tax receipts (Ex.P/10 to 14), property tax and water tax (Ex.P/15 to P/20). Plaintiff to substantiate her case has examined Balkrishna Tiwari (PW1), Suryapal Tiwari (PW/2), Shivprasad Bajpai (PW/3) and Shivcharan Shukla (PW/4). 7. The defendant to substantiate his case has examined Sanjay Mishra (DW/1) and R.N. Ekka (DW/1) and exhibited the documents ie., certified copy of the plaint of suit No. 29-A/19 (Ex.D/1), certified copy of the order (Ex.D/2), copy of the mutation register (Ex.D/2-A), receipt of rent (Ex.D/3), document relating to property of Ramharak Mishra (Ex.D/4 to D/6), copy of Khasra Nos. (Ex.D/7& 8), copy of the order sheet (Ex.D/9), copy of the application (Ex,D/10), report of Nazul Patwari (Ex.D/11), receipt of rent register (Ex.D/12 to 14), 10 record of Nazul khasra (Ex.D/15 to 20), copy of the order Ex.D/21 and 22 and copy of the suit property (Ex.D/23). 8. Learned trial Court on the basis of the evidence, material on record has allowed the suit, the learned trial Court while allowing the suit has recorded its finding that the suit property was self-acquired property of Ramharak Mishra and he has executed the will in favour of Shivmangal Tiwari relying upon the document Ex.D/1. Learned trial Court has also recorded its finding that due to relationship, he was residing in the south side of the house and the defendant has nowhere proved how he acquired the property. Thus, the learned trial Court has recorded its finding that he is living as licensee and since the defendants No. 4 to 7 were grand-sons of Baldev Prasad, they deemed to have been granted license. Accordingly, issues No. 3 and 4 have been decided in favour of the plaintiff. The trial Court has also recorded its finding that the suit land is self acquired property of Ramharak Mishra which has been obtained by Shivmangal Tiwari through Sankalp Will and Ex. P/1-A is not subject matter of challenge before any Court of law, as such, answered the issue No. 5 and 6 in favour of the plaintiff. Accordingly, the suit has been decreed. The defendant being aggrieved with the judgment and decree has preferred this First Appeal before this Court and this Court vide order dated 14-12-1998 has granted interim stay which is still operative. 9. During pendency of the appeal I.A.No.11 has been filed on 13-7-2014 for taking additional ground of appeal wherein it has been contended that whether the alleged will dated 7-5-2003 was not presented for registration by the executor of the Will Shri Bal Krishna 11 before Registrar as required under Section 40 of the Registration Act, so it is invalid and bogus will. I.A.No.12 has also been filed on 13-7-2014 for taking additional document on record wherein they have intended to place on record a copy of the Minutes Book of proceeding conducted regarding registration of will executed by Smt. Daulat Tiwari, wife of Shivmangal Tiwari wherein it has been mentioned that the property situated at jagdalpur, Khasra No. 23/1, 23/2, and 23/3 area 2328 sq,.ft has been given in favour of Shivmangal Tiwari on 7-5-2003. To substantiate the submission that Shivmangal Tiwari is owner of the suit property, this Court vide order dated 16-10-2014 has directed that I.A, Nos. 11 and 12 shall be considered while deciding the first appeal finally. Accordingly, these applications are first considered by this Court. 10. By these applications the appellant intends to take additional ground that the alleged will dated 7-5-2003 was not registered, so it is invalid and bogus will. Such will was not subject matter of the suit, therefore, it has no relevancy to decide the lis between the parties, accordingly, the same deserves to be rejected and accordingly, it is rejected, however, liberty is reserved to the plaintiff to take recourse under the law for examining the legality of the will by taking appropriate recourse under the law. 11. Similarly, the appellant/defendant has also filed an application for taking documents on record which are proceedings of registration of sale deed which is alleged to have been executed after judgment and decree passed by the learned trial Court which have no relevancy to 12 decide the present appeal, as such, it deserves to be rejected and accordingly, it is rejected. On merit of the appeal: 12. The learned counsel for the defendant/appellant would submit that there is no provision of oral or Sankalp Will, as such, the foundation of the case laid down by the plaintiff has no legs to stand, therefore, judgment and decree passed by the trial Court by recording its finding that Sankalp Will has been executed in faovur of original plaintiff’s husband is illegal and liable to be set aside by this Court. It has been further submitted that as per Section 122 of the Transfer of Property Act, claim based on oral gift is not sustainable when the price of the property is more than Rs.100/- at the relevant time. As such also the case projected by the plaintiff is not sustainable. To substantiate his submission he has referred to the judgments of Co-ordinate Bench of High Court of Delhi in Sunita Shivdasani Vs. Geeta Gidwani, reported in AIR 2007 Delhi 242, Hiraman (dead) through Legal Representatives vs. Jyoti Prakash, reported in 2020 SCC Online Chi.1877 and would submit that oral will cannot be executed. He would further submit that since beginning the defendants are disputing the title of the original plaintiff and serious cloud has been cast by the defendant from very beginning, therefore, when the title is in dispute, it is mandatory on the part of the plaintiff to seek prayer of declaration of title, as such merely suit for injunction and damages is not sustainable. To substantiate his case, he has referred to the judgment in case of Muddasani Venkata Narsaiah 13 (dead) through Legal Representatives vs. Muddasani Sarojana, reported in (2016) 12 SCC 288. 13. On the other hand, learned counsel for the respondents/plaintiffs would submit that the defendant has taken a plea regarding joint Hindu property, however, no evidence was led by them to establish that the suit property was joint family property. It has also been contended that the plaintiff through evidence has proved about execution of Sankalp will by examining the witnesses, as such, the finding recorded by the trial Court that Sankalp will was executed in favour of the original plaintiff, neither suffers from perversity, illegality which warrants interference by this Court. It has also been contended that no documentary evidence was led by the defendant to show that Baldev Prasad was having some property at Jagdalpur. He would further submit that as per Mitakshra School, the succession so far as daughter’s son is concerned, he is not entitled to succeed if there be any daughter living and capable of inheriting and daughter’s son can take the estate as full owners of the property and on his death the succession passes to his heirs and not to the heirs of his maternal grandfather. It has also been contended that the witness in para 7 of the cross examination has clearly admitted that against the order of Secretary Town Committee, whether any proceedings were made by Baldev or whether he had made any objection in the said proceedings, is not in his knowledge and it was not subject to challenge before any forum. From bare perusal of the documents exhibited by the defendants Ex. D/4, D/5 and D/6, it is quite vivid that it is in the name of Ramharak Mishra. It has been further submitted by the learned Sr. counsel for the plaintiff that though the defendants 14 have relied upon Ex. D/15 to D/18 to contend that the suit property was recorded in the name of Baldev Prasad in the year 1955-1956 but the aforesaid documents would not have any bearing over the title of Shivmangal and plaintiff for a simple reason that the said entries are only for fiscal purpose and does not confer any right. He would further submit that the defendants have failed to adduce any evidence to demonstrate that how they came in possession of suit property. Since the possession of Baldev was only for a licensee, after revocation of the license, the only relief which the plaintiff was required to claim is of eviction. As the defendants except making a bald statement, had not placed any evidence to raise cloud over the title of plaintiff there was no necessity to claim the relief of title also by the plaintiff. He would further submit that the defendant failed to discharge his burden and accordingly he would pray for dismissal of the appeal. To substantiate his submission he has referred to the judgments of Hon’ble Supreme Court in the case of A. Raghwamma and another vs. A. Chenchamma and another, reported in 1964 SC 136, Chairman, Board of Trustees, Shriram Mandir Jagtial Karim Nagar District Andhra Pradesh vs. S. Rajya Lakshmi and others, reported in (2019) 2 SCC 338, Union of India vs. Vijay Krishna Uniyal, reported in (2018) 11 SCC 382, Corporation of the City of Bangalore vs. M. Papaiah, reported in 1989 (3) SCC 612, Guru Amarjeet Singh vs. Ratanchand reported in (1993) 4 SCC 349 and State of HP vs. Keshav Ram reported in (1996) 11 SCC 257. 14. I have heard learned counsel for the parties and perused the record of the court below with utmost satisfaction. 15 15. From the submissions made by the parties, the points emerged for determination of this Court are as under: “(I) Whether Sankalp Will or oral will is permissible under the law? (ii) Whether on the basis of the revenue records the defendants can claim title over the suit property? (iii) Whether the finding recorded by the learned trial Court that Baldev was licensee, therefore, his legal representatives and heirs ie., son and grand-son became licensees, is justified or not? (iv) Whether the trial Court was right in decreeing the suit without the plaintiffs seeking relief of declaration/cancellation? Discussion and finding on point No. 1: 16. From the pleadings and evidence led by the plaintiff, it is quite vivid that the plaintiff has filed the suit claiming possession and injunction on the basis of Sanklap will i.e. an oral will. The plaintiff’s witness Suryakant Tiwari (PW-2) has stated in his evidence that Ramharak Mishra expired in the year 1940 and before his death he has given the suit property to Shivmangal Tiwari through Sankalp will, but has not specified when the Sankalp will was given in favour of Shivmangal Tiwari. Similarly, B.K. Tiwari (PW-1) Power of Attorney holder has admitted in the cross-examination that Shivmangal expired after 3 or 4 years death of Ramharak Mishra i.e. in the year 1944. The evidence led by the witness does not indicate any specific date but from the evidence inference can be drawn that the alleged Ssankalp will has been given after 1927. 16 17. Now, this Court has to see whether after 1st January, 1927 the Hindu can execute oral will or not after enactment of Indian Succession Act, 1925 (in short “Act of 1925”). For determination of the Point No. 1, this Court has to consider the Section 57, 63 and Schedule III of of Indian Succession Act, 1925. Section 57, 63 and Schedule III of Indian Succession Act, 1925 are reproduced below: “57. Application of certain provisions of Part to a class of Wills made by Hindus, etc.- The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply- (a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and (b) to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and (c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b): 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 mark 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 seen 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 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 17 present at the same time, and no particular form of attestation shall be necessary. Schedule III - Restrictions and modifications in application of foregoing sections 1. Nothing therein contained shall authorise a testator to bequeath property which he could not have alienated inter vivos, or to deprive any persons of any right of maintenance of which, but for the application of these sections, he could not deprive them, by will. 2. Nothing therein contained shall authorise any Hindu, Buddhist, Sikh or Jaina, to create in property any interest which he could not have created before the first day of September, 1870. 3. Nothing therein contained shall affect any law of adoption or intestate succession, 4. In applying section 70, the words “than by marriage or” shall be omitted. 5. In applying any of the following sections, namely, sections seventy-five, seventy-six, one hundred and five, one hundred and nine, one hundred and eleven, one hundred and twelve, one hundred and thirteen, one hundred and fourteen, one hundred and fifteen, and one hundred and sixteen to such wills and codicils, the words “son”, “sons”, “child”, and “children” shall be deemed to include an adopted child; and the word “grand-children” shall be deemed to include the children, whether adopted or natural-born, of a child whether adopted or natural-born; and the expression "daughter-in-law" shall be deemed to include the wife of an adopted son.” 18. From the provisions of these Sections and Schedule III of the Act, it is quite vivid that requirement of Section 63 of the Act of 1925 must be complied and are mandatory for a will executed by Hindu. A will which does not comply with the requirement of Section 63 is null and void. Clause (a) to Section 63 requires that a will should be in writing because it is to be signed and marked by the attestor himself or signed by some other person in presence of the testator or all his direction. Section 63 also requires that the will should be attested by two or more witnesses, thus, Section 63 of the Act of 1925 requires a will to be in writing. 18 19. Section 65 of the Act of 1925 provides for privilege will or oral will, but from perusal of Schedule III of the Act of 1925, it is quite vivid that Section 65 has not been included in Schedule III, as such, in view of Section 57 of the Act of 1925 the Hindus cannot make a privilege will or oral will after 1st January 1927 even if conditions of Section 65 are satisfied. Therefore, it is quite vivid that obviously Section 66 of the Act of 1925 has no application to Hindus as the said Section relates to mode of execution of an oral or a privileged will and other conditions for a valid will. 20. The Hon’ble High Court of Delhi in case of Sunita Shivdasani (Supra) has considered this issue and held as under: “14. Judgment of the Allahabad High Court in the case of Mt. Ishar Fatima Bibi (supra) is a case of a mohammedan and therefore has no application. Similarly, in the case of Mahabir Prasad (supra), Privy Council was considering the alleged oral Will made by a mohammedan. Mohammedans are still competent to make oral Wills. Section 57 is not applicable to mohammedans. Judgment of the Privy Council in the case of Venkat Rao (supra) relates to oral disposition by one Mr. Vishram Patil who expired on 23rd December, 1919 and was a resident of Central Provinces. The said decision obviously has no application as provisions of Section 57 of the Act were not applicable and the provisions of Section 2 of the Hindu Wills Act, 1870 were also not applicable as the deceased was not living in the specified area. Hindus too could make oral Wills prior to Hindu Wills Act, 1870 and thereafter in those territories where the Act was not applicable subject to the condition that a Will in writing was required in case of immovable properties located within the specified area. Full Bench of Allahabad High Court in Ganesh Prasad case (supra) examined the question whether on death of a Hindu his self acquired property would devolve on his undivided sons to the exclusion of the divided son under the Mitakshara Law. The oral Will relied upon was of 1926 (see page 218 in the All India Reporter). In Ramachandra's case (supra) oral Will by one Krishnaji was propounded on the basis of a document executed by his widow in 1904. These cases relied upon by the appellant do not relate to oral Wills made by Hindus after 1st January, 1927. It is quite clear that there is no scope for a Hindu to make an oral or a nuncupative Will after the said date. Judgment of Jammu and Kashmir High Court in the case of Shanti Lal (supra) did not specifically examine this issue and 19 question including Section 57 of the Act. The provisions of the Act have not been considered and dealt with. The question whether a Hindu can execute an oral Will after enactment and enforcement of the Act, was not in question in the said decision. A decision is a binding precedence for what it states and not for what can be inferred and presumed to have been decided. (Refer Punjab National Bank v. R.L. Vaid reported in [2002] 4 SCC 638), and A-One Granites v. State of UP reported in [2001] (3) SCC 537.” The SLP filed against the said judgment passed by the Delhi High Court has been dismissed by the Hon’ble Supreme Court on 03.01.2008. 21. The High Court of Chhattisgarh also in case of Hiraman (dead) through legal representatives & Others vs. Jyoti Prakash & Others reported in 2020 SCC Online 1877 has held in paragraph 15 as under:- “15. In view of the afore-said legal analysis and in view of the principle of law laid down by the Delhi High Court in Sunita Shivdasani (Supra), it is quite vivid that there cannot be oral will executed by a Hindu.” 22. The learned trial Court while deciding the issue No. 2 i.e. whether any will has been executed in faour of Shivmangal by Ramharak has not considered the provision of law and merely on oral evidence of the plaintiff’s witness PW-2 has decided the issue No. 2 in favour of the plaintiff. This finding is contrary to the law that oral will by Hindus after 1st January, 1927 is not permissible, as such, the finding on Issue No. 2 framed by the trial Court deserves to be set aside and accordingly it is set aside and the Point No.1 determined by this Court is answered in favour of the appellant/defendant that oral will by the Hindus is not permissible. Discussion and finding on points No. 2 and 3: 20 23. The learned trial Court while deciding the issue No. 3 and 4 whether the suit property has been given to the defendant as licensee and defendant No. 4 to 7 are in possession of suit land because of their license granted to them has recorded the finding that the defendants are unable to establish that on behalf of the defendant Baldev it has not been established that which property they have acquired to succession and recorded its finding that they are licensees of the suit property. To refute this finding, the learned counsel for the appellant/defendant would submit that on the basis of Exhibit D/2 to D/6 and D/12 to D/17 which are the copies of the land rent register (revenue records) and order sheets of revenue case Exhibit D/9, other revenue records i.e. copy of Nazul Maintenance Register (Exhibit D/18, D/19 & D/20) he is title holder of the suit property, therefore, the learned trial Court has committed illegality in recording the finding that the suit without declaration of title is maintainable as on the basis of revenue records he is title holder of the suit property. This was vehemently objected by the learned counsel for the plaintiff and would submit that on the basis of revenue records title cannot be conferred upon the defendant. Thus, he would submit that the finding of the trial Court regarding Issue No. 3 and 4 are just proper and does not warrant interference by this Court. Accordingly, he would