ASHA SEHGAL Vs. RAJINDER KUMAR SEHGAL

JUDGEMENT

(1.) The appellant is aggrieved of the order passed by the Additional District Judge dated 2.5.2009, whereby the ld.Judge has allowed the appeal filed by the respondent against the order passed by the ld.Civil Judge, Delhi dated13.04.2007 in Suit No. 13/06/03, whereby the application filed by the respondent under Order 1 Rule 10 and Order 22 Rule 3 CPC was dismissed and it was further ordered that in the absence of any legal heir of the deceased Smt.Agyawati Sehgal, who is the plaintiff in the suit, the suit also stands abated.

(2.) Briefly stating, the facts giving rise to filing of this appeal are that Smt.Agyawati Sehgal had filed a suit for possession and damages for use and occupation being mesne profits and for permanent injunction against the appellant claiming to be the absolute owner in possession of the entire property bearing No. B-10/19, Rajouri Garden, New Delhi, having inherited the same from her husband late Sh. Maya Ram Sehgal. Reliance was placed upon the will and testament dated 15.04.1968 executed by her husband Maya Ram Sehgal.

(3.) Appellants, who are the defendants in the suit, contested the alleged claim of Smt.Agyawati Sehgal. According to them they had been living in the first floor as co-owners since 1961 because late Sh. Maya Ram Sehgal and Sh.Ram Rakha Mal were real brothers and was a joint family before partition of the country in 1947. Sh. Ram Rakha Mal died before the partition of the country. Subsequently, the whole family migrated to Delhi from Lahore. Late Sh.Maya Ram Sehgal was the karta of the family which consisted of Sh.Maya Ram Sehgal, Sh.TirathRam, son of late Sh.Ram Rakha Mal and his two sons Sh.Surinder Kumar Sehgal and Sh.Rajinder Kumar Sehgal at Delhi. The family occupies house No. 9048 and 9049 in Gali No.1, Multani Dhanda, Paharganj, New Delhi. Then the family purchased the plot bearing No. B-10.19, Rajouri Garden, New Delhi in the name of Sh.Maya Ram Sehgal and a two storeyed house was built, the construction of which was completed in 1961. Family of both Sh.Maya Ram Sehgal and Sh.Tirath Ram Sehgal including Sh.Surinder Kumar Sehgal started living in the new house in Rajouri Garden in the year 1961. The late plaintiff, Smt.Agywati Sehgal and her husband Sh.Maya Ram Sehgal had no issue, but treated Sh.Surinder Kumar Sehgal as their son. Smt.Agyawati Sehgal had arranged the marriage of appellant no.1 with Sh.Surinder Kumar Sehgal in the same demised house and therefore, they have continued to live since 1961 on the first floor. The allegations of late plaintiff in the plaint were specifically denied that the appellants and their late father Sh.Surinder Kumar Sehgal were living on licence basis in the premises. It is also the case of the appellants that Sh.Maya Ram Sehgal, before his death on 11.10.1968 had left his final will dated 15.4.1968 under which he had bequeathed the demised house in favour of both Smt.Agyawati Sehgal and Sh.Surinder Kumar Sehgal. Hence under the said will they became co-owners.