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Smt. Raisa Begum & Othes v. Zahinul Hussan - SECOND APPEAL No. - 992 of 2007 [2007] RD-AH 16454 (8 October 2007)

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Hon. Dilip Gupta, J.

The defendants have filed this Second Appeal for setting aside the judgment and decree dated 31.7.2007 passed by the learned Additional District Judge (Court No.5) Pilibhit by which the Civil Appeal, that had been filed by the defendants, was dismissed.

The Original Suit had been filed for eviction of the defendants from the suit property. The plaintiff Jahinul Hassan is the brother of defendant No.1 Smt. Raisa Begum while defendant Nos. 2 to 4 are her children. It was stated in the plaint that the defendants are in unauthorised occupation of premises in dispute and in the earlier Original Suit No. 390 of 1989 filed by the present plaintiff against his sister Smt. Raisa Begum was decreed against which Civil Appeal No. 13 of 1991 was also dismissed on 31.3.1995. In the said suit, it was held that the will executed by the mother in favour of the plaintiff was genuine while the will on which reliance was placed by the defendants said to have been executed by the mother, was found to be forged since it was executed after the death of the mother.

In the present suit the sister has come out with the plea that she was entitled to the property on the basis of the inheritance. This plea could have been set up by the sister in the earlier suit but since it was not taken up, it cannot be taken up in subsequent suit. The Courts below have found that the defendants were in unauthorised occupation and the suit was decreed.

I have heard the learned counsel for the appellants and Sri Amitabh Agarwal learned counsel appearing for the respondent.

Learned counsel for the appellants submitted that the mother could not have given the entire property through the will to the brothers to the exclusion of the sister. This contention cannot be accepted as this plea was not raised by the defendant No.1Jahinul Hassan in the earlier Original Suit No. 390 of 1989. The Courts below have, therefore, not committed any illegality in decreeing the suit.

The Second Appeal is, accordingly, dismissed at the admission stage as no substantial question of law arises for consideration.

Dt/- 8.10.2007



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