ARUNA MALHOTRA Vs. CHETAN DAYAL AND ORS.

JUDGEMENT

(1.) ALL the Appeals assail the common Order dated 11.9.2009 passed by the learned Single Judge in CS(OS) No. 2318/2006. During the hearings of all these Appeals, it had been clarified that Mr. Basant Dayal, arrayed as Respondent No. 2/Defendant No. 2, had executed a Power of Attorney in favour of his sister, Mrs. Aruna Malhotra, Appellant/Defendant No. 1; that he has no interest adverse or inimical to those of Mrs. Aruna Malhotra; that there was a common counsel of the Appellant/Defendant No. 1 and Defendant No. 2/Respondent No. 2, namely, Mr. Mohit Kumar. By Order dated 23.11.2009, in FAO(OS) No. 453/2009 we had transposed the said Mr. Basant Dayal as Appellant No. 2. We had also struck off Mr. D. Nelsen from the Array of Parties as he is no longer the tenant in possession of the suit premises. These Orders should be effectual in respect of all the Appeals.

(2.) THIS Appeal assails the Order passed with regard to IA No. 1319/2008 filed by the plaintiff/Respondent No. 1 containing the following prayers:

(3.) IT appears that on 28.1.1999, Mrs. Aruna Malhotra, as the Attorney of Mr. Basant Dayal, filed a Suit seeking a declaration that the Will dated 21.2.1997 is not genuine. The counterblast is the filing of a Suit dated 25.1.1999 in Chandigarh stating that Will dated 4.2.1997 is the last Will of Shri D.C. Kaith; consequential relief has also been prayed for by the plaintiff/Respondent No. 1. This Suit was decreed by the Judgment dated 30.7.2004 of the Civil Judge, Chandigarh, whereby the Will dated 4.2.1997 was declared to be the last and final Will of Late Shri D.C. Kaith. However, the relief of partition of the said property, as well as a share of the rents received therefrom, was declined. Interestingly, the Appellant, as well as Mr. Basant Dayal, did not assail that Decree. The present Suit came up for hearing on 15.12.2006, on which date the learned Single Judge passed an ex parte order restraining Mrs. Aruna Malhtora and Mr. Basant Dayal from alienating, selling or parting with possession of the suit property or from inducting any other person in any part thereof. It was soon thereafter that the tenant quit the premises. In the hearing held on 23.5.2008, the learned Single Judge recorded the Consent Arrangement between the present adversaries to the effect that the front portion of the suit property, then lying vacant, be let -out. It next transpires, as pleaded in IA No. 9024/2008, that Mrs. Aruna Malhotra had identified the tenant for the front portion, but the plaintiff objected to the letting. It was in these circumstances that a Local Commissioner was appointed who, in his Report dated 21.8.2008, disclosed that the British High Commission had offered to rent the suit premises for Rupees 2,00,000/ - per month for a period of three years. This tenancy did not come to fruition inter alia since Mrs. Aruna Malhotra had held herself out to be the owner. Eventually, IA No. 13906/2008 was filed by the plaintiff under Order XXXIX Rules 1, 2 and 2A of the Code of Civil Procedure, 1908 (CPC. for short). On 24.12.2008, the learned Single Judge appointed a Local Commissioner to visit the suit premises whose Report indicated that the front portion of the suit property was occupied by the family of Mrs. Aruna Malhotra's daughter, namely, Mrs. Komal Malhotra, her husband Mr. Parul Soni alongwith their two children. The Local Commissioner has also recorded the voluntary statement of Mrs. Komal Malhotra, daughter of Mrs. Aruna Malhotra that Mrs. Komal Malhtora and her family were residing in the rear portion of the suit property till 25.10.2008.