DHARAMBIR Vs. DAYABIR

JUDGEMENT

(1.) This Regular Second Appeal under Section 100 of Code of Civil Procedure, 1908 (CPC) has been filed by the appellant/plaintiff whereby the suit filed by the appellant/plaintiff for possession of property being H.No. D-247 (Old No.D-245), J.J. Colony, Shakurpur, New Delhi has been dismissed. The appellant/plaintiff had also claimed damages/mesne profits for use and occupation of the subject house by the respondent/defendant. I note that the defendant no.2 in the suit was Delhi Development Authority and which was subsequently deleted from the array of the defendants.

(2.) The facts of the case are that the appellant/plaintiff pleaded that he was the owner of the suit property inasmuch as originally owner of the suit property was one Sh. Dalel Singh son of Sh. Nihal Singh. Sh. Dalel Singh was a bachelor and before his death he had executed a Will dated 3.6.1978 in favour of the appellant/plaintiff as the appellant/plaintiff was treated by Sh. Dalel Singh as his own son. It was pleaded in the plaint that after the death of Sh. Dalel Singh, one Sh. Phool Singh claimed that he is the owner of the house as he is the brother of the deceased. It was pleaded in the plaint that the respondent/defendant Sh. Daya Bir had forcibly and illegally occupied the house and since the appellant/plaintiff was the owner in terms of the Will dated 3.6.1978 executed by Sh. Dalel Singh, the suit for possession and damages was filed and which was liable to be decreed.

(3.) The respondent/defendant contested the suit and prayed for dismissal of the suit on the ground that the Will alleged to be executed in favour of the appellant/plaintiff by Sh. Dalel Singh was not a valid Will. The suit was also pleaded to be bad as it was pleaded that the brothers and sisters of Sh. Dalel Singh were not added as parties to the suit. It was also pleaded that in the absence of probate of the Will, no right can be claimed by the appellant/plaintiff in the suit property which was owned by Sh. Dalel Singh. It was further pleaded in the written statement that the suit property was built by Sh. Dalel Singh by taking loan from State Bank of India and this loan after the death of Sh. Dalel Singh was paid by brother of Sh. Dalel Singh, and therefore, Sh. Dalel Singh had no right to bequeath the suit property to anyone including the appellant/plaintiff. It was further pleaded in the written statement that the suit property has been allotted to the respondent/defendant by the DDA as the Will relied upon by the appellant/plaintiff has been forged and fabricated.