RAMESH KUMAR CHAUHAN Vs. BIMLA

JUDGEMENT

(1.) THIS appeal has impugned the judgment and decree dated 20.04.2006 which had reversed the findings of the trial Judge dated 07.08.2004. Vide judgment and decree dated 07.08.2004, the suit filed by the plaintiff Smt. Bimla Kumari seeking possession of the suit land i.e. 54 square yards in khasra No.409/1, Hospital Road, Jangpura, Bhogal, New Delhi had been dismissed. The impugned judgment had reversed this finding. Suit of the plaintiff stood decreed.

(2.) THE plaintiff has claimed herself to be the owners of the aforenoted suit property. His contention is that his father Kure was the erstwhile owner; Kure had also acquired another plot of land measuring 100 square yards bearing No. 410 situated at Jangpura, Bhogal on which a room with a kitchen, bathroom and latrine had been constructed. To adjust and accommodate the increasing members in the family, late Kure allowed his son Ram Swaroop (successor in interest of the defendant) to occupy the aforenoted suit property i.e. property No. 410. To eliminate all kinds of further disputes, Kure had executed his Will dated 15.12.1978 by virtue of which the aforenoted suit property had been bequeathed to the plaintiff. This Will was duly registered. THE plaintiff had constructed one room and kitchen on the said floor; his late father Kure was living with him. By virtue of this Will, the plaintiff had become the owner of the suit property. THE defendant on 05.10.1990 threatened the plaintiff to raise construction on a vacant portion of the suit land which was being used by the plaintiff as a courtyard. Criminal complaint was also lodged. On 08.10.1990, the defendant started digging foundation on the said vacant portion; they succeeded in their illegal design and raised a tin shed on this vacant portion which they occupied. Present suit for possession and damages was accordingly filed.

(3.) FOUR witnesses were examined on behalf of the plaintiff and one witness was examined on behalf of the defendant. The trial Judge returned a finding against the plaintiff. The Will Ex. PW-1/A was the bone of contention which formed the basis of issue No. 2. This issue was, however, decided in favour of the plaintiff. Trial Judge noted that there is nothing on record to show that the Will is forged. Testimony of PW-4 the attesting witness had been adverted to. In fact all issues (except issue No. 6) were decided in favour of the plaintiff. Qua issue No. 6, the Court reexamined the Will Ex. PW-1/A and while disposing of this issue, it held that the plaintiff has failed to prove that the Will was duly executed by the testator; since the suit filed by the plaintiff was based on this Will, the suit of the plaintiff stood dismissed.