YOGESH JAIN Vs. SUDHA JAIN

JUDGEMENT

(1.) The appellants were the defendants in the court below. They have impugned the judgment and decree passed by that court on 9 th May, 2012, whereby the suit of the respondents/plaintiffs was decreed granting them possession of the suit property whilst at the same time, declaring a General Power of Attorney; Agreement to Sell; Affidavit; a Receipt; Possession Letter and a Will dated 13 th August, 2003, relied upon by the appellants to establish their title to the suit property, to be, "forged and fabricated, null and void, and having no effect in law". In addition, plaintiffs were also granted a decree of mesne profits @ Rs.4,000/- per month with effect from the date on which the suit was filed before the court below, i.e., 8 th October, 2009, towards use and occupation of the suit RFA 384/2012 & CM No.15639/2012 (for leading additional evidence) property by the appellants. The appellants were also restrained by a decree of permanent injunction from creating any third party right in the suit property. Costs of the suit were also awarded to the plaintiffs/Respondents.

(2.) Counsel for the appellants has tried to impeach the judgment of the court below on three grounds. First, that the court below ought not to have relied solely upon the report of the Handwriting Expert, who was produced by the respondents/plaintiffs in support of their case. Secondly, that the court below was not justified in ignoring the testimony of the second appellant, Smt. Babita Jain, to the effect that the consideration of Rs.3,50,000/- was duly paid to the previous owner of the suit property, namely, late Sh. Harish Kumar Jain, who had executed all the documents in question in her favour. And thirdly, that the court below failed to appreciate the fact that the second appellant, Smt. Babita Jain, who was arrayed as defendant No.2 before the court below, was unable to prove the Will dated 13 th August 2003 by late Sh. Harish Kumar Jain bequeathing the suit property to her because the onus in this behalf was placed upon the respondents/plaintiffs by the court below.

(3.) Admittedly, the previous owner of the suit property was the late Sh. Harish Kumar Jain, who died on 20 th September, 2007. The respondents are his children and his only legal heirs. Admittedly also, even the appellants/defendants in the suit are also related to the late Sh. Harish Kumar Jain and that the appellants were inducted in the suit property by him. While the respondents/plaintiffs claimed that the defendants/appellants had been inducted in the suit property by their late father, Sh. Harish Kumar Jain, as gratuitous licensees; the case of the appellants/defendant was that they were inducted by late Sh. Harish Kumar Jain as tenants @ Rs.500/- per month. At the same time, the second appellant, Smt. Babita Jain, admitted in cross examination that no written agreement was executed between the parties and nor were any rent receipts taken by her from the late Sh. Harish Kumar Jain to whom she claimed that rent was paid in cash. She further stated that, in fact, her husband, Sh. Yogesh Jain, i.e., the defendant No.1, who is the appellant No.1 herein, was actually the tenant of the late Sh. Harish Kumar Jain in the suit property and that, although her husband was regularly filing the Income Tax Returns, payment of rent is not reflected therein. Significantly, the appellant No.1 did not enter the witness box. No other collateral evidence to bear out the stand of the appellants with regard to the tenancy, stated to have been created by the late Sh. Harish Kumar Jain in favour of Smt. Babita Jain, has been led.