KALAWATI DIED Vs. SHIV GOVIND

JUDGEMENT

(1.) This is a defendants' Second Appeal having been filed against the judgment and decree dated 22.9.2014 passed by the First Appellate Court by which the Trial Court's judgment and decree dated 5.8.2011 by which the Suit was dimissed, was set- aside and the Suit of the plaintiff was decreed.

(2.) The plaintiffs-respondents had filed a Suit for permanent injunction restraining the defendants from interfering with the suit property. The case of the plaintiffs was that one Ghunnu had two sons namely Mahadeo and Munni Lal and the plaintiffs were the sons of Munni Lal whereas the defendants were the descendants of one Ram Narain who had only been given a licence to stay in a portion of House No.C/122/26, Mohalla Muftipur, District Gorakhpur and that when the persons claiming through Ram Narain i.e. the defendant-Kalawati showed her intention to demolish a portion of the house then the injunction suit was filed. The plaintiff had claimed that the half portion of the house in dispute belonged to Mahadeo which he rightly willed to his grand-children (daughter's sons and one Mewa Lal) by a will dated 4.6.1980 and no one could have any right over the portion which belonged to the plaintiffs. The defendants, however, came up with a case that Mahadeo in fact was the sole owner of the property and that after he had willed half of the portion of the house on 4.6.1980 to his grand-children and Mewa Lal, he had further willed the property on 20.7.1982 to the defendant (now being represented by her sons).

(3.) The Trial Court framed as many as eight issues and issue no.1 was to the effect as to "whether the plaintiff was owner and in possession over half of the house no.C/122/26". This issue while was being decided, the Trial Court held that even though the father of the plaintiff Munni Lal and Mahadeo were real brothers but the house in question belonged to Mahadeo and that it was not an ancestral property and that Mahadeo could deal with the property in the manner he desired. The First Appellate Court after looking into the various evidence brought on record, came to a conclusion that the father of the plaintiffs Sri Munni Lal and his brother Mahadeo were brothers and that the property was ancestral and belonged to a common ancestor Ghunnu and, therefore, concluded that the plaintiffs were owners of half of the house in question. Further the Court after looking into all the evidence on record, documentary as well as oral, also found that the defendants were only licensees and had no right as such in the house in question. The suit was thereafter decreed and the defendants were directed to handover vacant possession of the disputed portion of the house no.C/122/26, Mohalla Muftipur, District Gorakhpur within thirty days from the passing of the judgment.