TILAK RAJ Vs. KAUSHALYA

JUDGEMENT

(1.) This appeal has impugned the judgment and decree dated 05.09.2006 which had endorsed the findings of the trial Judge dated 30.09.2004 whereby the suit filed by the plaintiff Tilak Raj seeking possession of the suit property i.e. property bearing No. 1289, Mohalla Ghasian, Pan Mandi, Sadar Bazar, Delhi along with damages had been dismissed.

(2.) The case of the plaintiff is that at present he is a co-sharer and in exclusive possession of the aforenoted suit property. Jamuna Devi was the co-sharer of this property; in terms of her Will dated 03.08.1992, she had bequeathed her share to the plaintiff. Jamuna Devi was otherwise in exclusive possession of this property. After her death, the aforenoted property came to the share of the plaintiff in terms of her registered Will. In January 1996, since defendant No. 1 (elder brother of the plaintiff) was having strained relations with his wife and son, the plaintiff permitted his brother to occupy a portion of this property; defendant had agreed to vacate it on demand. Inspite of legal notice dated 05.02.1997, defendant No. 1 had failed to vacate the suit property. Present suit was accordingly filed.

(3.) The defendant contested the suit. It was stated that the plaintiff is only a co-sharer in the suit property having obtained his title from Jamuna Devi, he is not the exclusive owner; the defendant is also a co-sharer in the suit property. Suit is liable to be dismissed as the bequest in terms of the Will dated 03.08.1994 can only be qua the share of the testator Jamuna Devi; she could have bequeathed only her co-share; she could not have bequeathed the entire suit property. Suit is liable to be dismissed.