MOHD ALI Vs. DINESH CHANDRA BHATT

JUDGEMENT

(1.) This second appeal has been preferred by the appellant against the judgment and decree dated 11.08.2011 and 18.08.2011 passed by Civil Judge (Senior Division)/F.T.C. Haldwani in civil suit no.90 of 2008, as well as against the judgment and decree dated 30.05.2012 and 06.06.2012 passed by Additional District Judge/III F.T.C. Nainital, in Civil Appeal No.21 of 2011. Both the judgments and decree, challenged herein, render the concurrent finding, whereby the plaint filed by the plaintiff has been returned.

(2.) In brief, facts of the case are that the plaintiff (the appellant herein) filed a suit for permanent prohibitory injunction and declaration of Will dated 26.04.2004 as null and void against the defendant in the Court of Civil Judge (Sr. Div.), Nainital, stating therein that father of the plaintiff Late Sri Mohd. Alam was the recorded tenure holder of the plot no.60, measuring 0.016 hectare, plot no.61 measuring 0.076, plot no.107 measuring 0.598 hectare, plot no.108 measuring 0.032 hectare, plot no.109 measuring 0.049 hectare and plot no.110 measuring 0.648 hectare, total measuring 1.819 hectare of khata no.15 and plot no.103 measuring 0.607 hectare, plot no.104 measuring 0.525 hectare, plot no.106 measuring 0.602 hectare, total measuring 1.734 hectare of land of khata no.14 and plot no.48 measuring 0.025 hectare, plot no.55 measuring 0.430 hectare, plot no.56 measuring 0.439 hectare, plot no.57 measuring 0.443 hectare, plot no.58 measuring 0.411 hectare, plot no.59 measuring 0.657 hectare, plot no.60 measuring 0.054 hectare, plot no.61 measuring 0.171 hectare, plot no.62 measuring 0.082 hectare, plot no.63 measuring 0.183 hectare, thus the total measurement of above land is 6.448 hectare, situated at Gram Haripur Khass, Pargana, Bhawar, Chha Khata, Tehsil Haldwani, District Nainital. Plaintiff's father expired on 29.12.2001, leaving behind his six sons (including the plaintiff) and his wife. After death of plaintiff's father, his legal heirs became the owner and bhumidhar of the land in suit and their names were also entered in the revenue records. It is further stated in the plaint that on 28.5.2008 when the plaintiff was looking after his property, the defendant came and asked the plaintiff to vacate the whole property on the basis of Will dated 26.4.2004 executed in favour of the defendant by plaintiff's father. The plaintiff claimed that he is in possession over the suit property, the defendant has no right and he be restrained from interfering into peaceful possession of the plaintiff.

(3.) The defendant contested the suit and filed his written statement stating therein that Late Mohd. Alam had executed registered Will dated 26.04.2004 in favour of the defendant on which basis name of the defendant has been mutated in the revenue records.