HIMANSHU Vs. SUDHANSHU

JUDGEMENT

(1.) THIS civil revision under Section 115 of the Code of Civil Procedure, 1908 (for short, the "Code") has been preferred by the revisionists -defendants against the order dated 10th January, 2014 passed by the Civil Judge (Senior Division), Firozabad in Original Suit No. 230 of 2010 (Sri Sudhanshu and others v. Subodh Kumar and others), whereby he has rejected the application filed by the revisionists -defendants under Order VIII Rule 6A read with Section 151 of the Code for registration of their counter -claim as a separate suit.

(2.) THE essential facts are that the respondent nos. 1 and 2 are plaintiff nos. 1 and 2 respectively in the suit. The plaintiff no. 1 is son of late Sri Arvind Kumar @ Arvind Vinay Verma and plaintiff no. 2 is wife of late Sri Arvind Kumar @ Arvind Vinay Verma. Father of the revisionists -defendants, namely, Sri Subodh Kumar and late Sri Arvind Kumar @ Arvind Vinay Verma were real brothers. The plaintiffs -respondents instituted a suit, registered as Original Suit No. 230 of 2010 (Sri Sudhanshu and others v. Subodh Kumar and others) for permanent injunction to restrain the revisionists -defendants from interfering in their possession over the suit property. The plaintiffs' case was that late Sri Arvind Kumar @ Arvind Vinay Verma was owner of the disputed property. He had executed a power of attorney in favour of his wife, the plaintiff no. 2. The defendants have fabricated a Will dated 02nd March, 1986. In fact, late Sri Arvind Kumar @ Arvind Vinay Verma did not execute any Will in favour of the defendant nos. 2 and 3. The plaintiffs -respondents came to know about the said Will for the first time when they received a notice of probate proceeding, being Petition No. 764 of 2009 (Sri Kripanshu and others v. Smt. Sarla Verma and others), filed by the revisionists -defendants in the Court of District Judge, Agra for obtaining probate. When on the basis of the said Will the defendants -revisionists tried to interfere in the possession of the plaintiffs -respondents over the suit property and also wanted to sell out the same, the plaintiffs -respondents had no other option but to file the present suit i.e. Original Suit No. 230 of 2010.

(3.) IN the said suit, the revisionists -defendants filed their written statement and also set up their counter -claim under Order VIII Rule 6A of the Code. The revisionists -defendants moved an application, being Paper No. -106Ka, praying therein that their counter -claim may be registered as a separate suit, i.e. Suit No. 230 -A of 2010, in Register No. 9 and both the suits may proceed separately and the separate issues may be framed.