VIJAY SHANKER RAI Vs. SARVJEET RAI

JUDGEMENT

(1.) Heard Sri Siddharth Varma, learned counsel for the petitioners and Sri Amit Kumar Raj, learned counsel for the respondents.

(2.) This writ petition has been filed by the petitioners-defendants challenging the order of the first appellate court dated 09.12.2011 passed in Civil Appeal No.23 of 2009, whereby, the application of the respondent No.3-defendant for transposition as appellant in the appeal filed by the sons of Ram Nagina, i.e. respondents No.1 & 2 herein has been allowed. The facts of the case in brief are as under:

(3.) One Sukhdev Rai executed a gift deed dated 20.02.1958 in favour of Ram Nagina, Ram Niwas and Bhagwanti. Bhagwanti was the wife of Ram Niwas and daughter of Sukhdev Rai. Ram Niwas and Ram Nagina were brothers. It is asserted by the respondent No.3 that the aforesaid gift deed was executed in view of the fact that Sukhdev Rai wanted his son-in-law to reside with him as gharjamai, which was not possible, therefore, in the alternative, an offer was made that Sri Ram Nagina, the brother of Ram Niwas would look after the properties of Sukhdev Rai and accordingly, the gift deed in question was executed and the marriage of Ram Niwas was solemnized with the daughter of Sukhdev Rai, i.e. Bhagwanti. Subsequently, the petitioners herein allege that on 19.11.1979, Sukhdev Rai executed a sale deed in respect of the same property, which was gifted to Ram Nagina and Ram Niwas in the year 1958, in their favour. As son as Ram Nagina and Ram Niwas came to know about it, the suit was instituted for cancellation of the said Will, which was registered as Suit No.85 of 1984, Ram Nagina Rai Vs. Smt. Dhaneshara Kunwar and others. Dhaneshara Kunwar daughter of Sukhdev Rai and the petitioners herein were made as defendants. Ram Niwas Rai was also made as a defendant allegedly for the reason that being employed in Rajsthan, it was not possible for him to file and pursue the case as plaintiff. In the suit proceedings, Ram Niwas was examined as plaintiff-witness-1. Ultimately, the suit was dismissed on 24.12.2008.