RAKESH GUPTA Vs. RAMESH GUPTA

JUDGEMENT

(1.) RAKESH Gupta, the defendant in the suit instituted by his brother Ramesh Gupta is aggrieved by the impugned decree dated October 01, 2014 allowing IA No. 14073/2014 filed by Ramesh Gupta praying for a decree to be passed on admission. Allowing the application, the suit has been decreed as regards prayer 'A' i.e. for possession of the suit property which is a portion on the second floor of property bearing No.R -34, South Extension (NDSE) Part -II, New Delhi.

(2.) CASE pleaded by Ramesh Gupta in the plaint is that he and Rakesh are real brothers. Their father late Sh.Dina Nath was the owner of property No.R -34, South Extension (NDSE) Part -II, New Delhi. He was also the owner of other properties. He executed a will on March 18, 1986, bequeathing his properties to his sons and his daughter -in -law : Ms.Anuradha the wife of Rakesh Gupta. That under the will he bequeathed the entire property R -34, South Extension (NDSE) to him except the front portion on the second floor consisting of a drawing -cum -dining room, a bed room, a kitchen, a bath room and a terrace in the front. He pleaded that the will was accepted when late Sh.Dina Nath died on December 12, 1986 and was acted upon. Rakesh Gupta's wife Anuradha sold the second floor of the property bequeathed to her at 2741, Gali Arya Samaj and in the sale -deed she claimed to be the owner under the will dated March 18, 1986 and that Rakesh Gupta signed as an attesting witness to the will. Ramesh Gupta further pleaded that in the year 1988 he constructed two rooms, a toilet -cum -bath, a store room and one dressing room on the rear open portion on the second floor of property No. R -34, South Extension (NDSE) Part -II, New Delhi because under the will said open space was bequeathed to him and out of love and affection permitted his brother to occupy the said portion without any consideration i.e. as a licensee. He pleaded that since he required the said portion of the property he asked his brother to vacate the same in the last week of November, 2011 and since his brother refused to vacate the same he had no option but to sue for a decree for possession and damages post the period the permission to occupy the suit property was withdrawn by him. Rakesh Gupta filed a written statement -cum -counter claim. He made pleadings by way of preliminary objections and relevant would it be to note the pleadings in para 4 (a), (e), (f) and (i). They read as under: -

(3.) IN the counter claim he made a prayer as under: -