(1.) A new counsel, Mr. Arvind Nayar, Advocate, has appeared on behalf of the Appellants and therefore the earlier counsel, Mr. Rahul Bakshi stands discharged. Mr. Rahul Bakshi states that he has handed over back the fee cheque and the case file to the Appellants which is confirmed by the counsel who is now appearing for the Appellants.
(2.) THE challenge by means of these Regular First Appeals under Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment and decree dated 16th January, 1999 which decided the lis between the sons and widow of Sh. Rup Chand. The dispute was with respect to the property B -IV/15, Amar Colony, Lajpat Nagar, New Delhi. The subject property was conveyed by means of a Lease Deed dated 21st November, 1967, executed by the Land and Development Office of the Ministry of Rehabilitation, Government of India in favour of Smt. Assi Bai widow of Rup Chand and Sh. Mohan Lal (her one son, Defendant No. 2 Bhag Chand being the other son) giving shares of 3/4th and 1/4th respectively to Smt. Assi Bai and Sh. Mohan Lal. Smt. Assi Bai is stated to have executed a gift deed dated 19.2.1982 in favour of her other son Sh. Bhag Chand and which gift deed was registered on 20.2.1982. As of today neither Sh. Mohan Lal is alive nor is Sh. Bhag Chand alive and nor Smt. Assi Bai. In the proceedings before the Trial Court, Mohan Lal claimed complete ownership of the property inter alia for the reasons that property was benami in the name of the mother but Mohan Lal was the actual owner, Mohan Lal had constructed on the property and hence was the owner by law of adverse possession/law of prescription and so on. Sh. Bhag Chand disputed the case of Sh. Mohan Lal and claimed inter -alia that the property in fact belonged to him as he had 3/4th share of the property which his mother Smt. Assi Bai had gifted by a gift deed dated 19/2/1982 registered on 20.2.1982 and that Mohan Lal was only 1/4th owner. These disputes have been decided by the Trial Court in the impugned judgment which decided two suits, one filed by Mohan Lal against Bhag Chand and the second filed by Bhag Chand against Mohan Lal and Assi Bai. By the impugned judgment the suit of Mohan Lal was dismissed and the suit of Bhag Chand was decreed and it was held that Mohan Lal was not entitled to 3/4th share of Smt. Assi Bai and in fact Bhag Chand was entitled to 50% ownership (back portion) of the suit property.
(3.) IT is a disputed question of fact whether Sh. Jagdish Lal Dua is the legal heir entitled to represent the estate of Sh. Bhag Chand, and such a disputed question of fact cannot be decided except by leading evidence. The procedure to decide such disputes of representation to an estate of a deceased person, in a pending litigation, is provided by Order 22 Rule 5 Code of Civil Procedure which reads as under: