IN THE SUPREME COURT OF INDIA

[(ORDER XXI RULE 3 (i)]

CIVIL APPELLATE JURISDICTION
(Under Article 136 of the Constitution of India)
Special Leave Petition (Civil) No._______ of 2022
WITH PRAYER FOR INTERIM RELIEF
[Arising out of the impugned final judgment dated
14.06.2022 passed by the Hon’ble High Court of
Chhattisgarh at Bilaspur in appeal bearing First Appeal
No. 84 of 2007]

IN THE MATTER OF:

KULDEEP SAHU …

PETITIONER

VERSUS

SMT. ANITA JAIN & ORS. ...RESPONDENTS

WITH
I.A. No. _______ of 2022
Application for exemption from filing official translation

PAPER BOOK
(For Index Kindly See Inside)
Advocate for the Petitioner: KAUSTUBH SHUKLA
 RECORD OF PROCEEDINGS

S. NO. PARTICULARS

1.

2.

3.

4.

5.

6.

7.
 INDEX
Sr. Particulars of Page No of the part Remarks
No Documents to which it belong
Part 1 Part 2
Content Content
of of File
Paperboo Alone
k
(i) (ii) (iii) (iv) (v)

1 O/R on Limitations
2 Listing Performa
3 Cover Page of Paper
Book
4 Index of Record of
Proceedings
5 Limitation Report
prepared by registry
6 Defect List
7 Note Sheet
8 Synopsis & List of
Dates
9 Copy of final
impugned judgment
dated 14.06.2022
passed by the Hon’ble
High Court of
Chhattisgarh at
Bilaspur in appeal
bearing First Appeal
No. 84 of 2007.
10 Special Leave Petition
along with Affidavit
11 APPENDIX-I
 Evidence Act, 1872
69. Proof where no
attesting witness
found
12 ANNEXURE-P/1
Translated copy of
the Will, dated
30.12.1979.
13 ANNEXURE-P/2
Translated copy of
the civil suit bearing
Civil Suit no.
20-A/2003 filed by
the petitioner before
the Learned Trial
Court on 30.08.2001.
14 ANNEXURE-P/3
Translated copy of
the Examination in
Chief & Cross
Examination, dated
20.11.2006 &
03.04.2007, of the
PW-2 in Civil Suit No.
20-A/2003
15 ANNEXURE-P/4
Translated copy of
the Examination in
Chief & Cross
Examination dated
20.11.2006 &
18.04.2007, of the
PW-3 in Civil Suit No.
20-A/2003
16 ANNEXURE-P/5
Translated copy of
the judgment, dated
28.06.2007, passed
 by the Learned Trial
Court in the Civil Suit
No. 20-A/2003 filed
by the petitioner
17 ANNEXURE-P/6
Copy of the appeal
bearing First Appeal
No. 84 of 2007 filed
by the petitioner on
10.07.2007
18 I.A. No. _______ of
2022
Application for
exemption from filing
official translation
19 Filing Memo
20 Vakalatnama
 IN THE SUPREME COURT OF INDIA
(CIVIL APPELLATE JURISDICTION)
SPECIAL LEAVE PETITION (CIVIL) NO._____OF 2022

IN THE MATTER OF:

KULDEEP SAHU …

PETITIONER

VERSUS

SMT. ANITA JAIN & ORS. ...RESPONDENTS

OFFICE REPORT ON LIMITATION

1. The present Special Leave Petition is within time.

2. The Petition is barred by time and there is delay of

___ days in filing the same against impugned

judgment dated 14.06.2022 and Petition for

condonation of ____ days delay has been filed.

3. There is delay of ____ in refilling the Petition and

Petition for condonation of _____days delay in refilling

has been filed.

BRANCH OFFICER

New Delhi
 SYNOPSIS

The petitioner is filing the present Special Leave Petition

against the impugned final judgment dated 14.06.2022,

passed by the Hon’ble High Court of Chhattisgarh at

Bilaspur, in appeal bearing First Appeal No. 84 of 2007,

wherein the Hon’ble High Court has dismissed the said

appeal filed by the petitioner.

Before explaining the circumstance of the present case

which gives rise to the present Special Leave Petition, the

petitioner would like to explain the facts of the present case

briefly.

On 30.12.1979, the suit property ad-measuring area 14.90

acres was given to the petitioner by a Will executed by Shiv

Prasad Sahu, s/o Mayaram Sahu and Smt. Ramvati Bai,

widow of Shri Ram Sahu, r/o village Dhulna, Police Station

Rajim, Tahsil Abhanpur, District Raipur, C.G. At the time

of the Will being executed, the petitioner was a minor, i.e.,

aged about 4 years.

Shiv Prasad Sahu and Smt. Ramvati Bai had expired in the

year 1980 and 1982 respectively. After the death of the

executant of the Will dated 30.12.1979, the Will had been

made effective. However, since the petitioner was minor at

that time, the father of the petitioner, namely, Chandrika

Prasad Sahu took care of the suit property.

The original Respondent No. 2 took advantage of the age of

the petitioner and got their name mutated in the revenue

records and sold the land bearing Khasra No. 25/1, area

0.352 hectare to the Respondent No. 1 vide registered Sale

Deed dated 03.09.1998.

It is pertinent to mention that as soon as the petitioner

came to know about the sale of the suit property, he raised

objection in the mutation proceedings and on his objection,

the proceedings before the Nayab Tehsildar, Raim was

closed on 29.07.1999 and hence, the name of the

Respondent no. 1 was not recorded in the revenue records

and has not been recorded till today.

The suit property is agricultural land and the petitioner is

still doing agricultural work on the suit property. However,

on the basis of registered sale deed dated 03.09.1998, the

Respondent no. 1 made an attempt to interfere with the

peaceful possession of the petitioner and tried to remove

the petitioner from the suit property and which

necessitated the petitioner to file a suit for declaration suit

for declaration of title and permanent injunction before the

Learned Trial Court.

On 30.08.2001, the petitioner instituted a civil suit bearing

Civil Suit no. 20-A/2003, for the declaration of title and

permanent injunction in relation the suit property ad-

measuring area 14.90 acres.

On 28.06.2007, the Learned Trial Court dismissed the Civil

Suit No. 20-A/2003 filed by the petitioner.

On 10.07.2007, the petitioner filed appeal bearing First

Appeal No. 84 of 2007 against the judgment of the Learned

Trial Court in the Civil Suit No. 20-A/2003.

On 14.06.2022, the Hon’ble High Court dismissed the

appeal bearing First Appeal No. 84 of 2007 filed by the

petitioner. Hence, the present special leave petition.

HON’BLE HIGH COURT IGNORED THE PECULIAR

FACTS AND CIRCUMSTANCES OF THE PRESENT CASE

It is pertinent to mention that the said sale transaction was

done without jurisdiction and authority of law as the

Respondent no. 2, merely on the basis of name being

recorded in the revenue records, had no right to sell the

said property. Therefore, the sale deed executed on

03.09.1998 is non-est.

It is pertinent to mention that as soon as the petitioner

came to know about the sale of the suit property, he raised

objection in the mutation proceedings and on his objection,

the proceedings before the Nayab Tehsildar, Rajim was

closed on 29.07.1999 and hence, the name of the

Respondent no. 1 was not recorded in the revenue records

and has not been recorded till today.

It is further pertinent to mention that the suit property is

agricultural land and the petitioner is still doing

agricultural work on the suit property and is still in

possession of the suit property which was sold by the

Respondent No. 2 to Respondent No. 1.

PRESUMPTION UNDER SECTION 114 ILLUSTRATION

(G) OF THE EVIDENCE ACT, 1872 OUGHT TO BE

DRAWN IN FAVOUR OF PETITIONER

The Hon’ble High Court ignored that the Respondent no. 1

has not examined herself, but has examined her husband

as DW-1, before the Learned Trial Court. It is settled legal

proposition that non-examination of the Respondent no. 1

as defense witness is fatal to the case as has been held by

this Hon’ble Court in Mussauddin Ahmed v. State of Assam

(2009) 14 SCC 541. The relevant paragraph of the

abovementioned case reads as under:-

“11. It is the duty of the party to lead the best evidence in its

possession which could throw light on the issue in

controversy and in case such material evidence is withheld,

the court may draw adverse inference under Section 114

Illustration (g) of the Evidence Act, 1872 notwithstanding

that the onus of proof did not lie on such party and it was

not called upon to produce the said evidence (vide Gopal

Krishnaji Ketkar v. Mohd. Haji Latif).”

Illustration (g) of Section 114 of Indian Evidence Act, 1872

provides that the court may presume that “evidence which

could be and is not produced, would if produced, be

unfavourable to the person who withholds it”. Hence, in the

light of aforementioned legal proposition laid down by this

court, the said presumption is ought to be drawn in the

favour of the petitioner.

COMPLIANCE UNDER SECTION 69 OF THE INDIAN

EVIDENCE ACT IS COMPLETE

In the present case, there were two attesting witnesses,

namely, Chandrabhan Singh and Askaran. It is pertinent

to mention that since Chandrabhan Singh had died, his

son son, i.e., Swatantra Pal Singh was examined as PW-3

and Askaran was an old man and was not in healthy state

of mind which was evident from his statements given on

commission (the petitioner had taken permission from the

Learned Trial Court to take his statement on commission).

It is a settled legal proposition that under Section 69 of the

Indian Evidence Act, the term ‘if no such attesting witness

can be found’, would cover a wide variety of circumstances,

including, situation where the attesting witnesses are

dead, or attesting witness is insane, or where

the attesting witness, though physically available, is

incapable of performing the task of proving the attestation

under Section 68 the Evidence Act.

Reliance is being placed on the judgment of this Hon’ble

Court in the matter of V. Kalyanaswamy v. L.

Bakthavatsalam, 2020 SCC OnLine SC 584. The relevant

paragraph is extracted as under:-

“74. Though the expression used is ‘if no

such attesting witness can be found, inter alia, it bears

the following interpretation’. The word ‘such’ before

‘attesting witness’ is intended to refer to

the attesting witness mentioned in Section 68 of the

Evidence Act. As far as the expression ‘found’ is concerned,

it would cover a wide variety of circumstances. It would

cover a case of an incapacity to tender evidence on account

of any physical illness. It would certainly embrace a

situation where the attesting witnesses are dead. Should

the attesting witness be insane, the word “found” is

capable of comprehending such a situation as one where

the attesting witness, though physically available, is

incapable of performing the task of proving the attestation

under Section 68 the Evidence Act, and therefore, it becomes

a situation where he is not found.”

In the present case, since, one attesting witness is dead

and the other witness is very old and is not in healthy state

of mind and hence in view of the abovementioned legal

proposition, Section 69 of the Indian Evidence Act would

be applicable.

In the present case, PW-2 (Clerk of the Counsel who

prepared the prepared the Draft) was extensively examined

by the Respondent no. 1 and PW-2 has confirmed the

presence of the attesting witnesses (Para 6 of the

examination-in-chief). It is pertinent to mention herein that

PW-2 had also stated that the Draft was prepared by the

Counsel, namely, Bhuwan Lal Mishra, in a blank paper in

his own hand writing and PW-2 had taken it for typing

(Para 5 of the examination-in-chief).

It is further pertinent to mention that PW-3 who was son of

Chandrabhan Singh, one of the two attesting witnesses,

was also examined to prove that the attestation by his

father was in his father’s own hand writing. (Para 5 of the

Examination-in-Chief and Para 8 of the cross examination)

It is also pertinent to mention that the signature of the

executant of the Will dated 30.12.1979 are also not in

dispute in the present case.

Therefore, considering the abovementioned facts and

circumstances, the compliance under the Section 69 of the

Indian Evidence Act is ought to be considered as complete.

It is pertinent to mention herein that the Hon’ble High

Court has failed to appreciate the abovementioned facts

and circumstances and has erroneously observed in Para

28 that the “plaintiff has not made any attempt to prove the

will…………………”.

MUTATION RECORDS ARE ONLY FOR FISCAL

PURPOSE
It is pertinent to mention herein that the Hon’ble High

Court has erroneously relied upon the Mutation Register

(Ex.D/1) to arrive at the finding that Ramvati died prior to

execution of the Will, i.e., prior to 30.12.1979.

It is pertinent to mention herein that the Hon’ble High

Court ignored that no death certificate was produced by

the Respondents to prove that the Ramvati died prior to the

date of the execution of the Will, i.e., 30.12.1979.

It is also pertinent to mention that Mutation Register

cannot be admissible as Proof of Death as Mutation

Records are only for the fiscal purpose. Reliance is placed

on the judgment of this Hon’ble Court in the matter of

Jitendra Singh v. State of M.P., 2021 SCC OnLine SC 802.

The relevant praragraph is extract is given as under:-

“6. ……………………….Be that as it may, as per the settled

proposition of law, 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……………………..”

Hence, since the Mutation Records are not valid proof of

the death of the Ramvati, therefore, veracity of the Will

cannot be questioned on the basis of mere contention of

the Respondents that the Ramvati died before the date of

the execution of the Will, i.e., 30.12.1979.

DEMARCATION OF THE SUIT PROPERTY OUGHT TO

BE DONE

It is pertinent to mention herein that the Hon’ble High

Court has failed to take into consideration that the Learned

Trial Court in its judgment in Para 5 has ignored that in

relation to several Khasras including Khasra No. 25/1, the

Respondents have not stated about how much portion has

been received by the Tulsi Bai, Basant Kumar, Kaleshwari

Bai, Kuleshwar, Chandrika Prasad, Gyatri Bai, Shanti Bai,

Jam Bai, Shyam Bai, Jaumn Bai and Saroj Bai.

In view of the same, it is humbly submitted that in the

present case, demarcation of the suit property is ought to

be decided before deciding the validity of the Will.

APPLICATION UNDER ORDER 41 RULE 27 OF CPC TO

BE DECIDED PRIOR TO THE DECISION OF THE FIRST

APPEAL

On bare perusal of the impugned judgment it is

evident that the Hon’ble High Court, prior to decision

in relation to Application under Order 41 Rule 27 of

CPC, has dismissed the appeal and thereafter has

rejected the Application under Order 41 Rule 27 of

CPC.

The said rejection of the Application under Order 41

Rule 27 of CPC, after the dismissal of the appeal, is

erroneous, since, the Hon’ble High Court, being the

final court for facts and law, should have re-

appreciated the pleas taken by the party before

deciding the appeal.

LIST OF DATES
DATES PARTICULARS

30.12.1979 That on 30.12.1979, the suit property

ad-measuring area 14.90 acres was given

to the petitioner by a Will executed by

Shiv Prasad Sahu, s/o Mayaram Sahu

and Smt. Ramvati Bai, widow of Shri

Ram Sahu, r/o village Dhulna, Police

Station Rajim, Tahsil Abhanpur, District

Raipur, C.G. At the time of the Will being

executed, the petitioner was a minor, i.e.,

aged about 4 years.

 A translated copy of the Will, dated

30.12.1979, is annexed hereto as

Annexure-P/1[Page no. ….. to …..]

1980 & 1982 That Shiv Prasad Sahu and Smt.

Ramvati Bai had expired in the year 1982

and 1980 respectively. After the death of

the executant of the Will dated

30.12.1979, the Will had been made

effective. However, since the petitioner

was minor at that time, the father of the

petitioner, namely, Chandrika Prasad

Sahu took care of the suit property.

03.09.1998 That original Respondent No. 2 took

advantage of the age of the petitioner and

got their name mutated in the revenue

records and sold the land bearing Khasra

No. 25/1, area 0.352 hectare to the

Respondent No. 1 vide registered Sale

Deed dated 03.09.1998.

29.07.1999 That it is pertinent to mention that as

soon as the petitioner came to know

about the sale of the suit property, he

 raised objection in the mutation

proceedings and on his objection, the

proceedings before the Nayab Tehsildar,

Rajim was closed on 29.07.1999 and

hence, the name of the Respondent no. 1

was not recorded in the revenue records

and has not been recorded till today.

30.08.2001 That the suit property is agricultural

land and the petitioner is still doing

agricultural work on the suit property.

However, on the basis of registered sale

deed dated 03.09.1998, the Respondent

no. 1 made an attempt to interfere with

the peaceful possession of the petitioner

and tried to remove the petitioner from

the suit property and which necessitated

the petitioner to file a suit for declaration

suit for declaration of title and

permanent injunction before the Learned

Trial Court.

That on 30.08.2001, the petitioner

instituted a civil suit bearing Civil Suit

 no. 20-A/2003, for the declaration of title

and permanent injunction in relation the

suit property ad-measuring area 14.90

acres.

A translated copy of the civil suit bearing

Civil Suit no. 20-A/2003 filed by the

petitioner before the Learned Trial Court

on 30.08.2001 is annexed hereto as

Annexure-P/2 [Page no. ….. to …..]

20.11.2006, That in Civil Suit No. 20-A/2003 on

03.04.2007 & 20.11.2006, the Examination in Chief of

the PW-2 was done and on 03.04.2007,

18.04.2007
both the Examination in Chief and

Cross-Examination of the PW-2 were

done before the Learned Trial Court.

That in Civil Suit No. 20-A/2003 on

20.11.2006, the Examination in Chief of

the PW-3 was done and on 18.04.2007,

both the Examination in Chief and

Cross-Examination of the PW-3 were

done before the Learned Trial Court.

A translated copy of the Examination in

 Chief & Cross Examination, dated

20.11.2006 & 03.04.2007, of the PW-2 in

Civil Suit No. 20-A/2003 is annexed

hereto as Annexure-P/3 [Page no. …..

to …..]

A translated copy of the Examination in

Chief & Cross Examination dated

20.11.2006 & 18.04.2007, of the PW-3 in

Civil Suit No. 20-A/2003 is annexed

hereto as Annexure-P/4 [Page no. …..

to …..]

28.06.2007 That on 28.06.2007, the Learned Trial

Court dismissed the Civil Suit No. 20-

A/2003 filed by the petitioner.

A translated copy of the judgment, dated

28.06.2007, passed by the Learned Trial

Court in the Civil Suit No. 20-A/2003

filed by the petitioner is annexed hereto

as Annexure-P/5 [Page no. ….. to …..]

10.07.2007 That on 10.07.2007, the petitioner filed

appeal bearing First Appeal No. 84 of

2007 against the judgment of the

 Learned Trial Court in the Civil Suit No.

20-A/2003.

A copy of the appeal bearing First Appeal

No. 84 of 2007 filed by the petitioner on

10.07.2007 is annexed hereto as

Annexure-P/6 [Page no. ….. to …..]

14.06.2022 That on 14.06.2022, the Hon’ble High

Court dismissed the appeal bearing First

Appeal No. 84 of 2007 filed by the

petitioner.

.2022 Hence, the present special leave petition.

 IN THE SUPREME COURT OF INDIA
[(ORDER XXI RULE 3 (i)]
CIVIL APPELLATE JURISDICTION
(Under Article 136 of the Constitution of India)
Special Leave Petition (Civil) No._______ of 2022
WITH PRAYER FOR INTERIM RELIEF
[Arising out of the impugned final judgment dated
14.06.2022 passed by the Hon’ble High Court of
Chhattisgarh at Bilaspur in appeal bearing First Appeal
No. 84 of 2007]

IN THE MATTER OF POSITION OF PARTIES

BEFORE BEFORE THIS
HON’BLE HON’BLE
HIGH COURT COURT
Kuldeep Sahu, aged about Petitioner Petitioner

32 years, son of Chandrika

Sahu, resident of village

Dhulna, Tahsil and District

Raipur (Chhattisgarh).

Versus

1. Smt. Anita Jain, aged Respondent Respondent

34 years wife of Shri no. 1 no. 1

Shriyansh Jain,

resident of Navapara

(Rajim), Tahsil

Abhanpur, District

Raipur (Chhattisgarh).

2. Vishnue Prasad Sahu, Respondent Respondent

son of Late Harmohan no. 2 no. 2

 Singh, aged 70 years.

3. Smt. Sona Bai dead Respondent Respondent

through L. Rs. no. 3 no. 3

(i) Patrika Sahu,

wife of Dhruv

Kumar Sahu,

aged about 52

years, resident of

village Tumgaon,

District

Mahasamund

(Chhattisgarh)

(Daughter).

(ii) Ashok Kumar

Sahu, son of

Budhram Sahu,

aged about 48

years, resident of

vilage Banarsi,

Thana and Tahsil

Arang, Ditrict

Raipur

(Chhattisgarh)
 (son).

(iii) Bhumin Bai @

Munni Bai, wife

of Daulal Sahu,

aged about 38

years, resident of

Dharam Nagar,

Near Hanuman

Mandir Pachpedi

Naka, Raipur

(Chhattisgarh)

(daughter).

4. Janki Bai widow of Respondent Respondent

Punitram Sahu, aged no. 4 no. 4

about 60 years,

Respondent No. 2 to 4,

resident of Village and

Post Banarsi, Thana

Arang, Tahsil Arang,

District Raipur (C.G.).

5. Omprakash, son of Respondent Respondent

Late Punitram Sahu, no. 5 no. 5

aged 45 years, resident

 of village and P.O.

Dulma, Thana

Nayapara (Gobra),

Tahsil Abhanpur,

District Raipur

(Chhattisgarh).

6. Rajkumar, Son of Late Respondent Respondent

Punitram Sahu, aged no. 6 no. 6

40 years, resident of

Village and P.O.

Banarsi, Thana and

Tahsil Arang, District

Raipur (Chhattisgarh).

7. Benkumari, wife of Respondent Respondent

Shri Patiram Sahu, no. 7 no. 7

aged 35 years, resident

of Post Lavan, Thana

Lavan, Tahsil Baloda

Bazar, District Raipur

(Chhattisgarh).

8. . Bhagwati Bai Sahu, Respondent Respondent

wife of Rajkumar Sahu, no. 8 no. 8

aged 37 years, resident

 of Village and post

umodi, Post Sakri,

Thana Kharora, Tahsil

Tilda, District Raipur

(Chhattisgarh).

9. . State of Chhattisgarh, Respondent Respondent

Through Collector, no. 9 no. 9

Raipur (Chhattisgarh).

PETITION UNDER ARTICLE 136 OF THE

CONSTITUTION OF INDIA SEEKING SPECIAL LEAVE TO

APPEAL AGAINST IMPUGNED FINAL JUDGMENT

DATED 14.06.2022 PASSED BY THE HON’BLE HIGH

COURT OF CHHATTISGARH AT BILASPUR IN APPEAL

BEARING FIRST APPEAL NO. 84 OF 2007

TO,
HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF
THE HON’BLE SUPREME COURT OF INDIA.
THE HUMBLE PETITION OF
THE PETITIONER ABOVE NAMED
1. MOST RESPECTFULLY SHOWETH:

i. That this is a petition under Article 136 of the

Constitution of India seeking Special Leave to

Appeal against the impugned final judgment

dated 14.06.2022 passed by the Hon’ble High

 Court of Chhattisgarh at Bilaspur in appeal

bearing First Appeal No. 84 of 2007.

2. QUESTIONS OF LAW

a. Whether the Hon’ble High Court ignored that the

Illustration (g) of the Section 114 of the Indian

Evidence Act, 1872 was applicable in the present

case in view of fact that Respondent no. 1 refrained

from her own examination and also in the light of the

judgment in the matter of Mussauddin Ahmed v.

State of Assam (2009) 14 SCC 541?

b. Whether Hon’ble High Court failed to appreciate that

the compliance under Section 69 was complete in

view of the statements of PW-2 and PW-3?

c. Whether the Hon’ble High Court failed to appreciate

that the Mutation Register cannot be relied upon as

the proof of death in light of the judgment of this

Hon’ble Court in the matter of Jitendra Singh v. State

of M.P., 2021 SCC OnLine SC 802?

d. Whether the Hon’ble High Court ignored that the

nature of the suit property had to be decided prior to

the decision in relation to the validity of the Will?

3. DECLARATION IN TERMS OF RULE 4(2):

That the petitioner states that no other petition seeking

special leave to appeal has been field by him against the

impugned final judgment dated 14.06.2022 passed by the

Hon’ble High Court of Chhattisgarh at Bilaspur in appeal

bearing First Appeal No. 84 of 2007.

4. DECLARATION IN TERMS OF RULE 5:

The Annexure-P/1 to P/6 produce along with the Special

Leave Petition are true copy of the pleadings and document

which form part of the record of the case in the

court/tribunal below against whose order the leave to

appeal is sought for.

5. GROUNDS

On the basis of the facts and circumstances mentioned

above the Petitioner crave leave before the Hon’ble Court

on the following ground:-

A. Because it is pertinent to mention that the said sale

transaction was done without jurisdiction and

authority of law as the Respondent no. 2, merely on

the basis of name being recorded in the revenue

records, had no right to sell the said property.

Therefore, the sale deed executed on 03.09.1998 is

non-est.
B. Because it is pertinent to mention that as soon as the

petitioner came to know about the sale of the suit

property, he raised objection in the mutation

proceedings and on his objection, the proceedings

before the Nayab Tehsildar, Rajim was closed on

29.07.1999 and hence, the name of the Respondent

no. 1 was not recorded in the revenue records and

has not been recorded till today.

C. Because it is further pertinent to mention that the

suit property is agricultural land and the petitioner is

still doing agricultural work on the suit property and

is still in possession of the suit property which was

sold by the Respondent No. 2 to Respondent No. 1.

D. Because the Hon’ble High Court ignored that the

Respondent no. 1 has not examined herself, but has

examined her husband as DW-1, before the Learned

Trial Court. It is settled legal proposition that non-

examination of the Respondent no. 1 as defense

witness is fatal to the case as has been held by this

Hon’ble Court in Mussauddin Ahmed v. State of

Assam (2009) 14 SCC 541. The relevant paragraph of

the abovementioned case reads as under:-

 “11. It is the duty of the party to lead the best

evidence in its possession which could throw light on

the issue in controversy and in case such material

evidence is withheld, the court may draw adverse

inference under Section 114 Illustration (g) of the

Evidence Act, 1872 notwithstanding that the onus of

proof did not lie on such party and it was not called

upon to produce the said evidence (vide Gopal

Krishnaji Ketkar v. Mohd. Haji Latif).”

E. Because the llustration (g) of Section 114 of Indian

Evidence Act, 1872 provides that the court may

presume that “evidence which could be and is not

produced, would if produced, be unfavourable to the

person who withholds it”. Hence, in the light of

aforementioned legal proposition laid down by this

court, the said presumption is ought to be drawn in

the favour of the petitioner.

F. Because in the present case, there were two attesting

witnesses, namely, Chandrabhan Singh and Askaran.

It is pertinent to mention that since Chandrabhan

Singh had died, his son son, i.e., Swatantra Pal Singh

was examined as PW-3 and Askaran was an old man

and was not in healthy state of mind which was

 evident from his statements given on commission (the

petitioner had taken permission from the Learned

Trial Court to take his statement on commission).

G. Because it is a settled legal proposition that under

Section 69 of the Indian Evidence Act, the term ‘if no

such attesting witness can be found’, would cover a

wide variety of circumstances, including, situation

where the attesting witnesses are dead, or attesting

witness is insane, or where the attesting witness,

though physically available, is incapable of

performing the task of proving the attestation under

Section 68 the Evidence Act.

H. Because reliance is being placed on the judgment of

this Hon’ble Court in the matter of V. Kalyanaswamy

v. L. Bakthavatsalam, 2020 SCC OnLine SC 584. The

relevant paragraph is extracted as under:-

“74. Though the expression used is ‘if no

such attesting witness can be found, inter alia, it

bears the following interpretation’. The word ‘such’

before ‘attesting witness’ is intended to refer to

the attesting witness mentioned in Section 68 of the

Evidence Act. As far as the expression ‘found’ is

concerned, it would cover a wide variety of

 circumstances. It would cover a case of an incapacity

to tender evidence on account of any physical illness.

It would certainly embrace a situation where

the attesting witnesses are dead. Should

the attesting witness be insane, the word “found” is

capable of comprehending such a situation as one

where the attesting witness, though physically

available, is incapable of performing the task of

proving the attestation under Section 68 the Evidence

Act, and therefore, it becomes a situation where he is

not found.”

I. Because in the present case, since, one attesting

witness is dead and the other witness is very old and

is not in healthy state of mind and hence in view of

the abovementioned legal proposition, Section 69 of

the Indian Evidence Act would be applicable.

J. Because in the present case, PW-2 (Clerk of the

Counsel who prepared the prepared the Draft) was

extensively examined by the Respondent no. 1 and

PW-2 has confirmed the presence of the attesting

witnesses (Para 6 of the examination-in-chief). It is

pertinent to mention herein that PW-2 had also

stated that the Draft was prepared by the Counsel,

 namely, Bhuwan Lal Mishra, in a blank paper in his

own hand writing and PW-2 had taken it for typing

(Para 5 of the examination-in-chief).

K. Because it is further pertinent to mention that PW-3

who was son of Chandrabhan Singh, one of the two

attesting witnesses, was also examined to prove that

the attestation by his father was in his father’s own

hand writing. (Para 5 of the Examination-in-Chief

and Para 8 of the cross examination)

L. Because it is also pertinent to mention that the

signature of the executant of the Will dated

30.12.1979 are also not in dispute in the present

case.

M. Because, therefore, considering the abovementioned

facts and circumstances, the compliance under the

Section 69 of the Indian Evidence Act is ought to be

considered as complete.

N. Because it is pertinent to mention herein that the

Hon’ble High Court has failed to appreciate the

abovementioned facts and circumstances and has

erroneously observed in Para 28 that the “plaintiff

has not made any attempt to prove the

will…………………”.
O. Because it is pertinent to mention herein that the

Hon’ble High Court has erroneously relied upon the

Mutation Register (Ex.D/1) to arrive at the finding

that Ramvati died prior to execution of the Will, i.e.,

prior to 30.12.1979.

P. Because it is pertinent to mention herein that the

Hon’ble High Court ignored that no death certificate

was produced by the Respondents to prove that the

Ramvati died prior to the date of the execution of the

Will, i.e., 30.12.1979.

Q. Because it is also pertinent to mention that Mutation

Register cannot be admissible as Proof of Death as

Mutation Records are only for the fiscal purpose.

Reliance is placed on the judgment of this Hon’ble

Court in the matter of Jitendra Singh v. State of M.P.,

2021 SCC OnLine SC 802. The relevant praragraph is

extract is given as under:-

“6. ……………………….Be that as it may, as per the

settled proposition of law, 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……………………..”

R. Because, hence, since the Mutation Records are not

valid proof of the death of the Ramvati, therefore,

veracity of the Will cannot be questioned on the basis

of mere contention of the Respondents that the

Ramvati died before the date of the execution of the

Will, i.e., 30.12.1979.

S. Because it is pertinent to mention herein that the

Hon’ble High Court has failed to take into

consideration that the Learned Trial Court in its

judgment in Para 5 has ignored that in relation to

several Khasras including Khasra No. 25/1, the

Respondents have not stated about how much

portion has been received by the Tulsi Bai, Basant

Kumar, Kaleshwari Bai, Kuleshwar, Chandrika

Prasad, Gyatri Bai, Shanti Bai, Jam Bai, Shyam Bai,

Jaumn Bai and Saroj Bai.

T. Because in view of the same, it is humbly submitted

that in the present case, demarcation of the suit

property is ought to be decided before deciding the

validity of the Will.

U. Because on bare perusal of the impugned

judgment it is evident that the Hon’ble High

Court, prior to decision in relation to Application

 under Order 41 Rule 27 of CPC, has dismissed

the appeal and thereafter has rejected the

Application under Order 41 Rule 27 of CPC.

V. Because the said rejection of the Application

under Order 41 Rule 27 of CPC, after the

dismissal of the appeal, is erroneous, since, the

Hon’ble High Court, being the final court for facts

and law, should have re-appreciated the pleas

taken by the party before deciding the appeal.

6. GROUNDS FOR INTERIM RELIEF

1 The Petitioner has prima facie case in his favour and

if during the pendency of the present Special Leave

Petition, the impugned judgment dated 14.06.2022

passed by the Hon’ble High Court of Chhattisgarh at

Bilaspur in appeal bearing First Appeal No. 84 of

2007 is not stayed, then the present Special Leave

Petition will be rendered infructuous and serious

prejudice would be caused to the Petitioner which

cannot be quantified in terms of money.

7. MAIN PRAYER
In the light of the above facts and circumstances the

Petitioner most humbly prays to the Hon’ble Court that

your lordship may graciously be pleased to as under:

a) Grant Special Leave to Appeal against the impugned

final judgment dated 14.06.2022 passed by the

Hon’ble High Court of Chhattisgarh at Bilaspur in

appeal bearing First Appeal No. 84 of 2007.

b) Pass any order which the Hon’ble court may deem fit

in the circumstances of the present case.

8. INTERIM PRAYER
In the light of the above facts and circumstances the

Petitioner most humbly prays to the Hon’ble Court that

your lordship may graciously be pleased to as under:

a. Grant ad interim ex-parte Stay against the

impugned final judgment dated 14.06.2022

passed by the Hon’ble High Court of

Chhattisgarh at Bilaspur in appeal bearing First

Appeal No. 84 of 2007.

b. Pass any order which the Hon’ble court may

deem fit in the circumstances of the present

case.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS

DUTY BOND SHALL EVER PRAY.

DRAWN & FILED BY KAUSTUBH SHUKLA

ADVOCATE-ON-RECORD
FOR PETITIONER
DRAWN ON : 2022
FILED ON : 2022
PLACE : NEW DELHI
 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
IN
SPECIAL LEAVE PETITION(CIVIL) NO. OF 2022

IN THE MATTER OF:

KULDEEP SAHU …

PETITIONER

VERSUS

SMT. ANITA JAIN & ORS. ...RESPONDENTS

CERTIFICATE
Certified that the Special Leave Petition is confined only to

the pleadings before the High Court whose order is

challenged and the other documents relied upon in those

proceedings. No additional facts. Documents or grounds

have been taken therein or relied upon in the special leave

Petition. It is further certified that the copies of the

documents /annexures attached to the special leave

Petition are necessary to answer the question of law raised

in the Petition or to make out ground urged in the special

leave Petition for consideration of this Hon’ble Court. This

certificate is given on the basis of instructions given by the

Petitioner whose affidavit is filed in support of the Special

Leave Petition.

FILED BY KAUSTUBH SHUKLA

ADVOCATE FOR PETITIONER
DATE: .2022
APPENDIX-I
Evidence Act, 1872
69. Proof where no attesting witness found.—
If no such attesting witness can be found, or if the

document purports to have been executed in the United

Kingdom, it must be proved that the attestation of one

attesting witness at least is in his handwriting, and that

the signature of the person executing the document is in

the handwriting of that person.