Holding

The will executed by Bhagubai was duly proved, and the lower courts' finding of non‑proof was erroneous.

Summary

The plaintiff, Madhukar D. Shende, claimed title to a suit property based on a registered will executed by the deceased Bhagubai in favour of her niece Chingubai, which was later transferred to the plaintiff. The defendant, Tarabai Abashedage, contested the will, alleging oral gift and adverse possession, and the trial and appellate courts held the will not proved, relying on alleged suspicious circumstances such as the testator's age and lack of medical evidence. The Supreme Court examined the statutory requirements under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, emphasizing that the propounder must establish testamentary capacity and proper execution, and that mere suspicion cannot defeat proof. It also considered whether a prior judgment on the same will in a different suit could be res judicata or, at the least, relevant evidence under Sections 11, 13 and 35 of the Evidence Act. Finding that the lower courts had erred by allowing unfounded suspicion to outweigh the evidence, the Court held the will proved, set aside the earlier judgments, and decreed the suit in favour of the plaintiff.

Issues considered

The testator's testamentary capacity and proper execution of the will under Sections 63 of the Indian Succession Act and 68 of the Indian Evidence Act
Whether suspicion or lack of medical evidence can defeat proof of a will
Whether a prior judgment on the same will in a different suit constitutes res judicata or relevant evidence
The burden of proof on the party propounding the will

Legislation cited

Indian Evidence Act, 1872s. 11, s. 13, s. 35, s. 68
Indian Succession Act, 1925s. 63

Subjects

willproof of willtestamentary capacityIndian Evidence ActIndian Succession Actres judicataburden of proofproperty titleadverse possession

Judgment

A MADHUKAR D. SHENDE
v.
TARABAIABASHEDAGE

JANUARY 9, 2002

B [R.C. LAHOTI AND BRIJESH KUMAR, JJ.]

Indian Evidence Act, 1872-Section 68-Will-Proof of execution a/-
Burden of proof lies on propounder to prove competence of testator and
C execution of will in the manner contemplated by !aw-preponderance of
probabilities and shifting of onus-suspicion or unnatural circumstances
attaching to a will have to be explained but assumed suspicion or supposition
cannot disprove a will-Relationship and status of persons setting up and
disputing will and pleadings, are relevant and significant-Held, on facts,
the will is proved-Indian Succession Act, 1925-Section 63.
D
Section 3- 'Proved', 'Not proved' (in relation to will)-Meaning of

Sections JI, 13 and 35-Finding upholding due execution of the same •
will by court in a different suit between same parties relating to a different
property is relevant evidence.
E One B Executed a registered will in favour of her sister's daughter C
bequeathing four properties including the suit property. B died a day after
the execution. C transferred her title and possession of the property to
appellant under a registered sale deed for a consideration of Rs. 5000.
Defendant claimed title to the property. The appellant filed a suit in trial court
p against the defendant for declaration of title to the property and for recovery
of possession. The defendant pleaded that the suit property was orally gifted
to her by one BK and that she acquired the title by adverse possession. The
trial court dismissed the suit of the appellant on the finding that the will
executed by B was not proved. The finding of the trial court was affirmed by
appellate court. High Court attributed various suspicious circumstances
G centring around the execution of the will and dismissed the appeal of the ,
appellant even though the defendant gave up the plea of acquisition of title by
adverse possession and conceded that the title in the property vested with B
and the sale deed executed by C in favour of the appellant was proved.

In appeal to this Court, the appellant contended that the execution of
H
132
MADHUKAR D. SHENDE v. TARABAI ABA SHEDAGE 133

the will should be treated like any other issue of fact even though certain A
additional relevant considerations to be taken; that the evidence relating to
execution of will should not be seen with suspicion and doubt; that the burden

lf of proof relating to the execution of will should be seen in the background of
relationship and status of the parties; that the appellate court and the High
Court in a different suit proceeding among the same parties relating to B
another property under the same will, held that the will has been adequately
proved; and that the said decision of the courts would constitute res judicata
for the present case.

The defendant contended that the concurrent finding of facts arrived at
by the courts below should not be interfered with; that the previous suit- C
proceedings related to a different property and was based on landlord-tenant
relationship; and that such finding would not constitute res judicata in the
present case.

Allowing the appeal, the Court
D
HELD: 1.1. The requirement of proofofa will is the same as any other
document excepting that the evidence tendered in proof of a will should
additionally satisfy the requirement of Section 63 of the Indian Succession
Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If, after considering
the facts and circumstances as emanating from the material available on
record, the court either believes that the will was duly executed by the testator E
or considers the existence of such fact so probable that any prudent person
ought to act upon the supposition that the will was duly executed by the testator,
then the factum of execution of will shall be said to have been proved. The
delicate structure of proof framed by a judicially trained mind cannot stand
on weak foundation nor survive any inherent defects therein but at the same F
time ought not to be permitted to be demolished by wayward pelting of stones
of suspicion and supposition by wayfarers and waylayers. [138-A-C)

R. v. Hodge, [1838), 2 Lewis CC 227 referred to.

1.2. The conscience of the court has to be satisfied by the propounder G
of the will adducing evidence so as to dispel any suspicions or unnatural
circumstances attaching to a will provided that there is something unnatural
or suspicious about the will. The law of evidence does not permit conjecture
or suspicion having the place of legal proof nor permit them to demolish a
fact otherwise proved by legal and convincing evidence. Well founded suspicion
may be a ground for closer scrutiny of evidence but suspicion alone cannot H
134 SUPREME COURT REPORTS [2002] 1 S.C.R.

A form the foundation of a judicial verdict-positive or negative. [138-E-F)
1.3. One who propounds a will must establish the competence of the
testator to make the will at the time when it was executed. The onus is
discharged by the propounder adducingprimafacie evidence proving the
competence of the testator and execution of the will in the manner contemplated
B by law. The contestant opposing the will may bring material on record meeting
such prima facie case in which event the onus would shift back on the
propounder to satisfy the court affirmatively that the testator did know well
the contents of the will and in sound disposing capacity executed the same.
The factors, such as the will being a natural one or being registered or
C executed in such circumstances and ambience, as would leave no room for
suspicion, assume significance. If there is nothing unnatural about the
transaction and' the evidence adduced satisfies the requirement of proving a
will, the court would not return a finding of 'not proved' merely on account of
certain assumed suspicion or supposition. [138-G-H; 139-A)

1.4. The factum of will executed by B in favour of C bequeathing the
D
suit property is specifically alleged in the plaint. In the written statement,
excepting for a bare denial, there is no other pleading questioning the sane
disposing capacity of B at the time of execution of will. C could not be examined
for evidence because she was indisposed. C's son was examined for evidence.
The two attesting witnesses on account of being known to C's son, being his
E classmates, were known to the family and therefore were natural witnesses
to be called to attest the execution of the will. On account of their acquaintance
with the family, they could have naturally known and identified the executant
Merely because of being classmates they would be interested in obliging their
classmate's mother so as to benefit her and go to the extent of falsely deposing
F is too far fetched an inference to draw. [139-C-D)

The reasoning of the trial court and ~he appellate Court for holding the
will not proved verge on absurdity. B died a day after the execution and
registration of the will. There is nothing to show that B was physically or
mentally incapacitated from executing the will. There is nothing to doubt the
G mental and physical capacity ofB but the same has been suspected because of
complete absence of any medical evidence of a doctor which would show that
the testator was in a sound and disposing state of mind. There is no rule of
law or of evidence which requires a doctor to be kept present when a will is
executed. The court below have allowed their findings to be influenced by such
suspicion and conjectures as have no foundation in the evidence and have no
H \'.'elevance in the facts and circumstances of the case and unwittingly allowed
MADHUKAR D. SHENDE v. TARABAI ABA SHEDAGE [R.C. LAHOTI, J.) 135
their process of judicial thinking to be vitiated by irrelevant reasoning and A
considerations. The weighty factor that the factum of execution of will by B
was being denied by a rank trespasser without raising any specific pleadings
and the fact that no relation of B has chosen to lay a challenge to the will
have been overlooked. The High Court ought not to have sustained such a
perverse finding which would result in the property of a rightful owner lost B
to a trespasser. (142-B-G)

2. The judgment of the courts given in the earlier suit among the same
parties relating to another property under the same will is a relevant piece of
evidence under Sections 11, 13 and 35 of the Indian Evidence Act ignoring
such a relevant and material piece of documentary evidence of undoubted C
veracity is a serious error of law having a vitiating effect on the finding on
the most vital issue in the case. (141-H; 142-A)

Tiruma/a Tirupati Devashthanams v. K.M Krishnaiah, (1998) 3 SCC
331 referred to.
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 110 of 2002.

From the Judgment and Order dated 12.1.200 I of the Bombay High
Court in S.A. No. 360 of 1988.

Subrat Birla and S.C. Birla for the Appellant.
E
A.S. Bhasme, S.K. Visen and Manoj Mishra for the Respondent.

The Judgment of the Court was delivered by

R.C. LAHOTI, J. The plaintiff, who has lost in a suit for declaration of F
title and issuance of preventive injunction, in the alternative for recovery of
possession, from the courts below as also the High Court, has filed this
petition seeking special leave to file appeal.

Leave granted.

The suit property is situated at Shaniwar Peth, Satara in the State of
G
Maharashtra. It bears C.T.S. No. 876 and admeasures 218 sq. meters. It is not
disputed between the parties that the suit property was initially owned by late
Bhagubai who· expired on 24th September, 1963. According to the plaintiff, late
- Bhagubai executed a registered deed of will on 22nd September, 1963 in favour
of Chingubai, who is none else than her own sister's daughter. Having H
136 SUPREME COURT REPORTS [2002] I S.C.R.

A inherited the property under the will of Bhagubai, Chingubai transferred her
title and possession to the plaintiff under a registered deed of sale dated 24th
September, 1976 for a consideration of Rs.5,000. The suit was filed some time
in the year 1976 itself alleging that defendant was threatening to dispossess
the plaintiff and was claiming title in herself. The defendant, in her written
statement, submitted that the property had come to vest in one Babu Kanha
B Mali who had orally gifted the same to the defendant 35 or 40 years prior to
the institution of the suit and therefore the title in the suit property vested
in her. A plea of plaintiff's title having been extinguished and the same having
vested in the defendant by adverse possession was also raised in the written
statement. The trial court found the will dated 22nd September 1963 not
C proved, and so the plaintiff having not acquired any title under the sale deed
executed by Chingubai in his favour, and therefore, directed the suit to be
dismissed.

The plaintiff preferred an appeal. He also sought for an amendment of
the plaint so as to seek relief of recovery of possession in alternative to the
D relief of preventive injunction, in the event of the defendant being found in
possession of the suit property. The amendment was allowed. However, on
merits the appellate court affirmed the finding of the trial court that the will
dated 22nd September 1963 was not proved. This finding has been maintained
by the High Court while dismissing the second appeal preferred by the
E plaintiff. It is pertinent to note that before lhe High Court, the learned counsel
for the defendant did not dispute that the defendant's title in the suit property
was not proved. The learned counsel for the defendant also gave up the plea
of acquisition of title by adverse possession by the defendant. It was conceded
before the High Court that the title in the suit property undisputedly vested
in Bhagubai to begin with and the sale deed dated 24th September, 1976 by
F Chingubai in favour of the plaintiff was also proved. The only question
surviving for consideration was whether the approach of the courts below
while rt;cording a finding of non-proof of the will dated 22nd September, 1963
allegedly executed by Bhagubai in favour of Chingubai was vitiated by error
of law and in substance that was the substantial question of law on which
G the second appeal was admitted for hearing by the High Court. The same
question arises for consideration before this Court. >- ·

Having heard the learned counsel for the parties, we are of the opinion
that the findings of the trial court and the first appellate court as also of the
High Court are vitiated for adopting an approach not permitted by law and
H because of overlooking the material and relevant legal considerations.
MADHUKAR D. SHENDE v. TARABAI ABA SHEDAGE [R.C. LAHOTI, J.] 137
The High Court has in its judgment summed up the so-called suspicious A
circumstances centering around the execution of the will, and found by the
courts below, as under:-

I. At the time of execution of the will, late Bhagubai was about 80,
years of age and there is complete absence of any medic~I B
evidence to show sound and disposing state of mind of the
executant;

l 2

3.
The will was executed on 22nd September, 1963 and within two
days thereafter on 24th September, 1963, the executant expired;

The Sub-Registrar went to the house of the executant for
c
registration of the will though his office was situated only half
a furlong away from the residence of the executant and no
reason has been assigned why the executant could not have
gone to the office of the Sub-Registrar if she was in a sound
mental and physical state; D
4. Chingubai, the plaintiff and beneficiary under the will, has not
been examined; Vasant, son ofChingubai, examined in evidence
is not a witness to the execution of will;

5. Mohammed and Narhari, the two attesting witnesses to the will, E
also examined in the Court, were classmates of Vasant.

Shri Subrat Birla, the learned counsel for the appellant has submitted
that an issue as to the execution of will has to be determined in a civil case
like any other issue of fact though certain additional considerations become
relevant because of the document being a will in a dispute relating to which F
the executant is not available to depose to the factum of execution and the
will may have the effect of interfering with the ordinary and natural course
of succession. In any case, submitted the learned counsel, evidence relating
to execution of will cannot be appreciated with an eye of suspicion and
assuming the existence of certain circumstances as suspicious though there G
is no suspicion about them. He further submitted that in a given case, whether
the burden of proof relating to execution of will has been discharged or not
should be appreciated in the background of relationship and status of the
parties between whom the dispute has arisen. Mr. Bhasme, the learned counsel
for defendant, submitted that the concurrent findings of fact arrived at by the
courts below and maintained by the High Court do not call for any interference. H
138 SUPREME COURT REPORTS [2002] l S.C.R

A The requirement of proof of a will is the same as any other document
excepting that the evidence tendered in proof of a will should additionally
satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and
Section 68 of the Indian Evidence Act, 1872. If after considering the matters
before it, that is, the facts and circumstances as emanating from the material
B available on record of a given case, the court either believes that the will was
duly executed by the testator or considers the existence of such fact so
probable that any prudent person ought, under the circumstances of that
particular case, to act upon the supposition that the will was duly executed
by the testator, then the factum of execution of will shall be said to have been
proved. The delicate structure of proof framed by a judicially trained mind
C cannot stand on weak foundation nor survive any inherent defects therein
but at the same time ought not to be permitted to be demolished by wayward
pelting of stones of suspicion and supposition by wayfarers and waylayers.
What was told by Baron Alderson to the Jury in R v. Hodge, (1838) 2 Lewis
CC 227 may be apposite to some extent-"The mind was apt to take a pleasure
in adapting circumstances to one another and even in straining them a little,
D if need be, to force them to form parts of one connected hole; and the more
ingenuous the mind of the individual, the more likely was it, considering such
matters, to overreach and mislead itself, to supply some little link that is
wanting, to take for granted some fact consistent with its previous theories
and necessary to render them complete." The conscience of the court has to
E be satisfied by the propounder of will adducing evidence so as to dispel any
suspicions or unnatural circumstances attaching to a will provided that there
is something unnatural or suspicious about the will. The law of evidence does
not permit conjecture or suspicion having the place of legal proof nor permit
them to demolish a fact otherwise proved by legal and convincing evidence.
Well founded suspicion may be a ground for closer scrutiny of evidence but
F suspicion alone cannot form the foundation of a judicial verdict-positive or
negative.

It is well-settled that one who propounds a will must establish the
competence of the testator to make the will at the time when it was executed.
G The onus is discharged by the propounder adducing prima facie evidence
proving the competence of the testator and execution of the will in the manner
contemplated by law. The contestant opposing the will may bring material on
record meeting such prima facie case in which event the onus would shift
back on the propounder to satisfy the court affirmatively that the testator did
know well the contents of the will and in sound disposing capacity executed
H the same. The factors, such as the will being a natural one or being registered
MADHUKAR D. SHENDE v. TARABAI ABA SHEDAGE [R.C. LAHOTI, J.] 139

>
or executed in such circumstances and ambience, as would leave no room for A
suspicion, assume significance. If there is nothing unnatural about the
transaction and the evidence adduced satisfies the requirement of proving a
will, the court would not return a finding of 'not proved' merely on account
.... ' of certain assumed suspicion or supposition. Who are the persons propounding

J'· and supporting a will as against the person disputing the will and the pleadings
of the parties would be relevant and of significance.
B

The factum of will having been executed by Bhagubai in favour of
Chingubai, the sister's daughter, bequeathing the suit property is specifically
alleged in the plaint. In the written statement excepting for a bare denial, there
is no other pleading raised questioning the sane disposing capacity of c
Bhagubai at the time of execution of will. It is true that the plaintiff Chingubai
did not appear in the witness box but that is because she was indisposed.
Her son has appeared in the witness box. The two attesting witnesses on
account of being known to Chingubai's son, being his classmates, were
known to the family, and therefore, were natural witness to be called to attest
the execution of will. On account of their acquaintance with the family, they D
.. could have naturally known and identified the executant. Merely because of
being classmates they would be interested in obliging their classmates' mother
so as to benefit her and go to the extent of falsely deposing is too far fetched
an inference to draw. The contents of the will, coupled with oral evidence,
show that for last 25/30 years, Chingubai had taken care qf Bhagubai and it E
was due to love and affection of Bhagubai for Chingubai that the former was
bequeathing her properties in favour of Chingubai. Chingubai is none else
than Bhagubai's sister's daughter and probably the only h~r. There is nothing
to suggest that Bhagubai had anyone else than Chingubai, who could be a
closer heir or relation of Bhagubai and with whom Bhagubai could have spent
her last days. No other relation of Bhagubai, who would have succeeded to F
the estate of Bhagubai if the will would not have been there, has come
forward to dispute or to object to the will. The challenge is thrown by a
stranger to the family and one who has trespassed upon the property.

--'< There is another very important piece of evidence. There are four
G
properties bequeathed by the same will by late Bhagubai in favour of Chingubai.
One of those four pieces of property (and not the property in dispute in the
present proceedings) has been earlier a subject matter of dispute and litigation
between these very parties. It appears that such other property was held by
Tarabai, the defendant respondent as a tenant of Bhagubai while the property
CTS No.876 (subject- matter of dispute in the present proceedings) was H
140 SUPREME COURT REPORTS [2002] I S.C.R.

. A trespassed upon by Tarabai. As to the tenancy premises, Chingubai filed a
suit for ejectrnent against Tarabai after terminating her tenancy and claiming
right to sue by virtue of this very will dated 22.9.63. In that suit also Tarabai,
the defendant-respondent, had denied the will. The suit was dismissed by the
trial court. The plaintiff Chingubai preferred an appeal in the court of District
B Judge, Satara which was allowed. In its judgment dated 30.8.1966, the learned
District Judge while dealing with the will held inter alia as under:

"Bhagubai was a helpless widow staying in her old age under the
protection of Chingubai at her place and she appears to have
insignificantly small property and naturally she would desire to give

c this property to the person who was looking after her in her old age
when she had become helpless. The Sub-Registrar has examined the
woman and being satisfied about the testamentary capacity of the
woman has registered the will. This also is the circumstance which has
to be taken into consideration. Having regard to the fact that the Will
is challenged by a mere tenant having no interest in the property
D except by adverse possession, the evidence which has been tendered
is, in my view, adequate to prove the testamentary capacity as well
as the execution of the Will. Therefore, differing with the learned
Judge of the trial court, 1 hold that the will has been duly propounded
and the proof tendered for execution of the will and the proof of the
fact that Bhagubai was having disposing state of mind at the time of
E the execution of the will are adequately proved in this case. Under
these circumstances 1 hold that Chingubai has succeeded in
establishing the fact that the will propounded by her confers on her
such interest as may be had by Bhagubai."

· The defendant Smt. Tarabai filed a petition under Article 227 of the
F Constitution before the High Court laying challenge to the judgment of
District Judge. The High Court by judgment dated 2.10.1970 (in Special Civil
Application No.1802 of 1966) while dealing with this very will recorded the
following finding:

"In the first place, the Defendant has not led any evidence whatsoever
G to raise any doubt about the evidence of the Plaintiff. Secondly, the
will is attested and a registered document. Thirdly, the plaintiff has
examined the attesting witness, who was in a position to judge whether
Bhagubai was in a disposing state of mind or not. Now, the finding
of this issue essentially is a finding of fact and I cannot conceive any
H reason why this one sided evidence could not have been believed by
/'

MADHUKAR D. SHENDE v. TARABAI ABA SHEDAGE [R.C. LAHOTI, J.] 141
-
.,_.. ,>I
the lower appellate court." A
The finding of the lower Appellate Court holding the will to be a duly
• attested and registered document executed by Bhagubai was upheld. This
finding has been discarded in the present proceedings by all the three courts,

) up to the High Court, on a singular reasoning that the property in the earlier
suit being a different one, the finding as to execution of the will could not
be res judicata in the present proceeding though the parties are same. To our
B

mind, the three courts upto the High Court have all missed something
,... significant as stated hereinafter.

Shri Subrat Birla the learned counsel for the plaintiff-appellant submitted
that the above said decisions which are inter party would constitute res
c
judicata for the purpose of the present suit and the finding that the will dated
22.9.1963 is a duly executed last will and testament of late Bhagubai could not
have been re-agitated by the defendant-respondent in the present suit. On the
other hand, Shri Bhasme the learned counsel for the defendant-respondent
submitted that the previous suit, though between the same parties, related to D
some other property and was based on landlord-tenant relationship and any
finding recorded in the decision therein would not constitute res judicata in
the present suit which is a title suit. We are not inclined, in the facts and
circumstances of this case, to weigh the admissibility and binding efficacy of
the decision rendered in the earlier suit on the doctrine of res judicata and
E
holding the earlier decisions as conclusive between the parties. Res judicata
is a mixed question of fact and law. We do not find the plea of res judicata
,.._ having been raised in the plaint. Copies of pleadings and issues framed in the
earlier suit have not been tendered in evidence and we do not find any issue
on res judicata having been framed and tried between the parties in the
present suit. No submission raising the plea of res judicata was made before F
any of the courts below or the High Court. We do not think such a plea can
be permitted to be raised before this Court for the first time and at the hearing.
However, still it cannot be lost sight of that the earlier litigation was between
the same parties wherein this very will was relied on by this very plaintiff in
support of his title to the property in dispute therein. The plaintiffs right to
• ..... G
sue based on this very will was claimed and asserted in the earlier suit and
was upheld though denied by this very defendant. These facts and finding
are recorded in the previous judgment and have relevance in the present suit.
[Also see, Tirumala Tirupati Devasthanams v. K.M. Krishnaiah, [1998] 3 SCC
331. Thus away from res judicata the judgment given in the earlier suit is
relevant piece of evidence under Sections I I, 13 and 3 5 of the Evidence Act H
-
142 SUPREME COURT REPORTS (2002] 1 S.C.R.

A and has a material bearing on the controversy arising for decision in the
present suit. This material aspect has been completely overlooked by the ...
High Court and the courts below. A relevant and material piece of documentary
•

c
evidence, of undoubted veracity, has been ignored and that is a serious error
of law having a vitiating effect on the finding on most vital issue in the case.

B Other reasonings of the trial court and the first appellate Court, for
holding the will not proved, too, to say the least, verge on absurdity. Bhagubai
died a day after the execution and registration of the will. There is nothing
to show that Bhagubai was physically or mentally incapacitated from executing
the will. On the one hand, the courts below have questioned the propriety
c of the Sub-Registrar having come to the house of Bhagubai for registering
the will on the ground as to why Bhagubai could not have gone to the office
of Registrar on an assumption that she was fit to do so and yet the mental
capacity of Bhagubai to execute the will has been doubted. The two attesting
witnesses have been held to be 'interested' on the ground of their being
class-fellows of Chingubai' s son and on the other hand, it has been doubted
D whether they would have known and identified the executant. There is nothing
to doubt the mental and physical capacity of Bhagubai but the same has been
suspected because of "complete absence of any medical evidence, of a doctor
which would show that the testator was in a sound and disposing state of
mind". There is no rule of law or of evidence which requires a doctor to be
E kept present when a will is executed. In short, the courts below have allowed
their findings to be influenced by such suspicion and conjectures as have no
foundation in the evidence and have no relevance in the facts and circumstances
of the case and unwittingly allowed their process of judicial thinking to be
vitiated by irrelevant reasonings and considerations. The weighty factor that
the factum of execution of will by Bhagubai was being denied by a rank
F trespasser without raising any specific pleadings and the fact that no relation
of Bhagubai has chosen to lay a challenge to the will, have been simply
overlooked. In our opinion, the High Court ought not to have sustained such
a perverse finding which would result in the property of a rightful owner
being lost to a trespasser.
G
The appeal is allowed. The judgment and decree of the Trial Court as
upheld by the first Appellate Court and the High Court are set aside. Instead
-
the suit filed by the plaintiff is directed to be decreed. The plaintiff is declared
to be the owner of the suit property and entitled to recovery of possession
from the defendant. The defendant shall hand over vacant and peaceful
H possession of the suit property to the plaintiff within a period of two months
MADHUKAR D. SHENDE v. TARABAI ABA SHEDAGE (R.C. LAHOTI, J.] 143
from today failing which the plaintiff shall be entitled to execute the decree A
and recover possession. The plaintiff appellant shall also be entitled to costs
throughout
"
B.S. Appeal allowed.

]
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