RAMAPATI Vs. DHARAM SUKH

JUDGEMENT

(1.) These are two civil revisions filed under S.115 of the Code of Civil Procedure. The property in dispute initially belonged to one Ramlali Devi. She died on 21st March; 1979. In May, 1979 Sri Dharam Sukh Tewari filed an application under S.192 of the Indian Succession Act before the District Judge, Allahabad for issue of a direction that the possession of the properties belonging to Ramlali Devi be delivered to Dharam Sukh Tewari. This application was filed against Sri Ramapati Tewari and Sri Girja Prasad Tewari. Sri. Ramapati Tewari and Sri Girja Prasad Tewari are the sons of Paramsukh Tewari who was the real brother of the husband of Ramlali Devi. Dharamsukh Tewari is the real brother of Tribhuwan Nath, the husband of Ramlali Devi. In essence the dispute is between the uncle Dharamsukh Tewari and his nephews Girja Prasad Tewari and Ramapati Tewari in respect of the property of late Smt. Ramlali Devi. This application under S.192 of the Succession Act was allowed by the District Judge by judgment dated 22nd May, 1982. Sri Ramapati Tewari filed Civil Revision No. 368 of 1982 challenging the said judgment. Sri Girja Prasad Tewari filed Civil Revision No. 400 of 1982 against the same judgment. Since both these revisions involved common question of fact and law and, as such, they are being decided by a common judgment.

(2.) I have heard the learned counsel for the revisionists in both the revisions and the learned counsel for the opposite party Dharam Sukh Tewari.

(3.) In the application, which was moved under S. 192 of the Indian Succession Act, it has been categorically admitted by the opposite party that Ramapati Tewari and Girja Prasad Tewari had been residing in the property in dispute much prior to the death of Smt. Ramlali Devi, when admittedly, the revisionists were in possession of the property for quite a long time, a heavy duty was cast upon the opposite party, who has moved the application under S. 192 of the Succession Act, to establish before the Court as to under what circumstance a summary remedy was being availed of in the case in question. In normal circumstances, if a person is in possession of the property, he cannot be evicted by means of adopting a summary remedy, as rights flow by virtue of long possession. It is, consequently, incumbent upon the applicant under S. 192 of the Succession Act to establish categorically and by positive evidence that he is availing of the summary remedy for special reasons alleged by him.