D N AHIUWALIA Vs. A N WANCHOO

JUDGEMENT

(1.) Plaintiff, D.N. Ahluwalia by this suit wants to bedeclared the absolute owner of the annexee portion including land under neathKothi No. 6, Friends Colony (West), New Delhi. His claim is based on the 'Will'dated 28/08/1984, executed by late Smt. Rajeshwari, owner of this property.In the alternative, he has claimed ownership of this annexee portion on account ofpeaceful, open and uninterrupted possession and enjoyment of this annexee asowner thereof for a period of more than 12 years.

(2.) . During the pendency of the suit, present application has been filed seekingrestraining order against the defendants from dispossessing him from the annexeein question. He has based his claim primarily on the ground that he alongwith hisfamily members had been residing in this portion of the house for a considerablelong time as owner/occupier. He has explained how he became owner of thisproperty. According to him he was an employee of a firm M/s.Mohan Brothers(hereinafter called the firm) since 1931. At the relevant time, this firm was aproprietory concern of Pt.Manmohan Dhar. Subsequent thereto this firm becamea partnership firm. Pt.Dhar had a 4 Annas Share in the same. Plaintiff had beenserving Pt.Dhar because Pt.Dhar had no issue of his own. Being issueless, Pt.Dharhad been treating the plaintiff as his son. Somewhere in 1935, plaintiff was allowedto occupy two rooms flat of one of the annexees at 16, Curzon Road, free of rent, bylate Pt. Dhar. Late Smt-Rajeshwari was also living with Pt.Dhar in the mainbuilding at Curzon Road. After Pt.Dhar's death, the plaintiff continued living withSmt.Rajeshwari in the said building at Curzon Road. Smt.Rajeshwari also treatedplaintiff as her son. Pt.Dhar had executed a 'Will' in favour of the plaintiff therebybequeathing absolute right of the portion in his occupation in Kothi No. 16, CurzonRoad. He was also given two Annas share in the business of M/s. Mohan Brothers.After Pt.Dhar's death all his moveable and immoveable properties except shares inthe firm devolved on Mrs. Rajeshwari. Somewhere in 1960 Smt. Rajeshwari soldthe lease hold rights of the property atl6, Curzon Road. With the sale proceeds, shepurchased the present house at 6, Friends Colony (West) New Delhi. She con-structed servant quarters. One annexee portion was specially constructed for theplaintiff and his family. The plaintiff alongwith his family came and started livingwith late Smt. Rajeshwari, in the annexee portion of this house at 6, Friends Colony(West) New Delhi. Smt. Rajeshwari initially orally gifted this annexee portion to theplaintiff. Subsequently in order to safeguard his interest she executed a 'Will'thereby bequeathing the annexee alongwith land underneath it to him. Shedeclared him to be exclusive owner of the annexee and the land underneath it.Defendant No. 4 got a 'Will' executed from Smt. Rajeshwari with an ulteriormotive. Smt. Rajeshwari had executed the 'will' in favour of the plaintiff tosafeguard his rights as she sensed the bad and malafide intentions of defendant No.4 and to ensure that defendant No. 4 may not deprive him and his family theownership rights of the annexee. After her death, the defendant No. 4 startedharassing the plaintiff. Her apprehensions turned out to be true. The defendantsin order to deprive the plaintiff of his right of this property, started disposing andalienating the main building as well as the annexee. In order to sell this annexeeportion, the defendants have started forcibly dispossessing the plaintiff from thesuit property. It is to safeguard this right that the suit has been filed. By thisapplication ad-interim injunction restraining the defendants has been sought.

(3.) . This application has been contested by defendants, inter alia, on the groundthat neither the gift nor alleged 'Will' by Smt.Rajeshwari is valid. The same was notexecuted by her. The said documents have been fabricated and forged. Moreover,the plaintiff cannot claim any other portion of the annexee even on the basis of thealleged documents relied by him. He, at best, can stake claim on the annexee andthe land underneath the same and nothing more. The adjacent land and the openspace in the annexee area shown as red in the plan filed by the plaintiff by nostretch of imagination formed part of the said annexe mentioned in the alleged'Will'. The plaintiff has no right to use the passage meant for the occupiers of themain building. The plaintiff cannot use the main entrance. Like other neighbours,he can also have egress and ingress from the side road. Plaintiff lived at 16, CurzonRoad as licencee, being employee of M/s. Mohan Brothers. In the present premiseshe shifted as licencee only in the same capacity being part time clerk of Smt.Rajeshwari.