RAKESH GUPTA Vs. SUSHIL KUMAR GUPTA AND ORS

JUDGEMENT

(1.) I.A.12175/2016 (on behalf of defendant no.1 under Order 7, Rule 11 (d) CPC) The defendant no.1 vide this application has sought the dismissal of the suit on the ground that the plaintiffs have no cause of action in their favour. It is submitted that suit is based on a Will dated 31.05.2010 and its Codicil dated 23.03.2011 executed by defendant no.4 and she is still alive. No suit can be filed since the Will is enforceable only on the demise of testator, and testator is still alive.

(2.) In their reply, the plaintiffs have submitted that although the document is titled as Will (dated 31.05.2010) and Codicil (dated 23.03.2011) but in fact these documents are settlement documents and pursuant to this the plaintiffs are in settled possession of the different portions of the property No.4, Defence Colony Market, New Delhi. While the plaintiff no.1 is in settled possession of the entire first floor, second floor portions, the plaintiff no.2 is in the settled possession of 50% of the ground floor of Shop No.4, Defence Colony Market in the capacity of partner of M/s New Evergreen Store. It is submitted that the plaintiffs have sought a decree of permanent injunction against their illegal dispossession as they apprehend illegal dispossession by defendants and since they are in settled possession they have cause of action in their favour. It is submitted that the application is liable to be dismissed.

(3.) I have heard the arguments and have perused the relevant record.