AMBIKA PRASAD Vs. SHYAM BIHARI

JUDGEMENT

(1.) Heard, Sri Jai Prakash Yadav,learned counsel for the plaintiff-appellants and Sri Vyas Narayan Shukla, learned counsel for the defendant-respondents.

(2.) The instant second appeal under Sec. 100 of the Civil Procedure Code 1908 (hereinafter referred as CPC) has been filed against the judgment and decree dtd. 5/10/2023 passed in Civil Appeal No.38/2009 (Shyam Bihari and Others versus Sharda Prasad (deceased) substituted by his legal heirs Ambika Prasad and Others) by the Additional District Judge/F.T.C.-Ist,Sultanpur, whereby the lower appellate court allowed the defendant-respondents first appeal. Consequently, the judgment and decree dtd. 26/5/2009 passed in suit for cancellation of Will i.e. Regular Suit No.225/2004(Sharda Prasad and others versus Balkrishna and others) filed by the plaintiff-appellants has been set aside and the suit has been dismissed.

(3.) Learned counsel for the appellant submitted that the property in dispute belongs to Late Ram Chandra Pandey, who was father of the parties. He was survived by his five sons. The dispute arose in view of an alleged registered Will Deed said to have been executed by Late Ram Chandra Pandey on 2/11/1998 whereby it excluded the plaintiff Shitla Prasad i.e. predecessor-in-interest of plaintiff-appellants and the property was bequeathed to the remaining four sons, out of which three sons have been given 1/5th share each, whereas the youngest son 2/5th share,. Being aggrieved the plaintiff-appellants instituted a suit bearing Regular Suit No.225 of 2004, which after contest came to be decreed on 26/5/2009.