High Court of Judicature at Allahabad
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Shri Dev Gupta v. Shri Chandra Gupta - SECOND APPEAL No. 2767 of 1979  RD-AH 14068 (22 August 2006)
Court No. 9
SECOND APPEAL NO. 2767 OF 1979
Shri Deo Gupta and others - Defendants-Appellants
Shri Chandra Gupta (since deceased) represented by
Smt. Kewla Devi and others - Plaintiff-Respondents
Hon'ble Sunil Ambwani, J.
1. This Second Appeal arising out of OS No. 13 of 1977 between brothers filed by Shri Chandra Gupta against three brothers for ejectment of shop in dispute on the ground that the defendants are licencees and that their licence was revoked by him. He claimed ownership of the shops on the basis of will dated 25.9.1956 executed by Smt. Sahodara (plaintiffs father's sister) exclusively in his father. In an earlier suit the three brothers claiming the properties through will dated 22.1.1962 by which Smt. Sahodra had bequeathed the shop to all the four brothers.
2. In the earlier suit for possession of sahan, parties have set up same wills. The trial court prima facie found that the will dated 25.9.1956 was genuine.
3. In the revision No. No. 119 of 1963 decided on 2.5.1963 the High Court held as follows;
"Both the orders one directing the removal of the name of Hira Lal from among the plaintiffs and the other by way of refusal to substitute the names of the applicants 2 to 4 also as legal representatives of the deceased plaintiff Smt. Sahodra are not such as can be interfered with in revision. The orders are not improper and it cannot be said that the discretion was wrongly exercised. Further, the Munsif had the jurisdiction to pass such orders and when he decided to pass the two orders, may be erroneously, they cannot be challenged in revision. The proper remedy available to the applicants was to raise the question of title in another suit.
The revision has thus no force and it is hereby dismissed. Costs on parties. Stay order is vacated.
Dt. 2.3.1963 Sd/- D.S. Mathur"
4. In the written statement, the defendants denied the execution of the will dated 25.9.1956. The trial court framed issues with regard to due execution of the both the wills being Issue Nos. 4 and 5 and found that whereas the plaintiff has proved his will dated 25.9.1956 through the marginal witness, and that the will was registered, the defendants did not prove the will. In fact the defendants did not produce any marginal witness or the scribe. Their father and mother were marginal witnesses and brother-in-law was the scribe. It has come in the evidence that father has died but there is nothing to show that mother and brother in law were not alive.
5. The finding of adverse possession was returned against the defendants as possession was permissive and in any case 12 year's period had not expired from the date of death of Hira Lal-the father of the four brothers, who was running the shop and died in 1976. The suit was filed in 1977. It was decreed on 31.8.1978. The Civil Appeal No. 427 of 1978 was dismissed on 15.5.1979.
6. In the circumstances, learned counsel for defendant did not argue the points in Second Appeal.
7. The substantial questions of law as to whether the suit was barred under Section 11 C.P.C. and that learned counsel for the appellant had argued its question in Second Appeal, is wholly misconceived. The parties had led evidence on the respective wills. The defendant could not prove the will set up by them.
8. The Second Appeal is consequently dismissed. The defendants have claimed possession on the basis of will which they could not prove. They are in possession of the property in dispute for last 36 years without compensating the parties. Section 35-A of C.P.C. now provides for compensatory cost in respect of false claims. In the present case, the evidence on record clearly shows that the defendant had put up false claims
of the will dated 22.1.1962 in their favour which they could not prove either in the earlier suit or present suit. They are continuing to occupy the shops for last 36 years.
9. In the facts and circumstances the defendant-appellants are directed to pay Rs. 100/- per month as mesne profits for use in occupation of the shop from the date of decree passed by the trial court with 6% simple interest and also to pay Rs. 10,000/- as costs of litigation to the plaintiff.
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