DATTUSING GIRIDHARSING RAJPUT Vs. BHAGWANT DEVASTHAN BARSHI

JUDGEMENT

(1.) BOTH the aforesaid second Appeals were admitted by this Court on 26th February 1988 by passing the following order:

(2.) FOR the sake of convenience, the parties are referred to with reference to their status in the trial court in Reg. Civil Suit No. 586 of 1976. Second Appeal no. 69 of 1988 arises out of the decree passed in reg. Civil Suit No. 586 of 1976. The Respondents in the said Second Appeal are the original Plaintiffs in Reg. Civil Suit No. 586 of 1976 and the Appellant is the original Defendant No. 1. Second Appeal No. 70 of 1988 arises out of Reg. Civil Suit No. 555 of 1976. The said suit is filed by Defendant No. 1 in Reg. Civil Suit No. 586 of 1976. The Plaintiffs in Reg. Civil Suit No. 586 of 1976 are the Defendants in Reg. Civil Suit No. 555 of 1976,

(3.) THE Defendant No. 1 Dattusingh is the nephew of one Sundarabai. Sundarabai is the widow of Govind singh who was the uncle of Defendant No. 1 Dattusingh. Admittedly the property which is the subject matter of both the suits is held by Sundarabai. The dispute is as regards the wills executed by the said Sundarabai. The plaintiff No. 1 in RCS No. 586 of 1976 is a charitable trust registered under the Bombay Public Trust Act 1950 and the other Plaintiffs are the Trusteas of the said trust. The said Sundarabai died on 5th September 1971. The case of the Plaintiffs is that Sundarabai executed a registered Will dated 26th April 1966 in favour of the plaintiff No. 1 Trust and by virtu of tha said Will, the said property was baquaathed by Sundarabai in favour of the Plaintiff No. 1 Trust. Therefore the said Reg. Civil suit No. 586 of 1076 is for declaration that the Trust has become owner of the suit property by virtue of the said Will. The prayer in the suit is for possession of the property subject matter of the Will and for mesne profits. The case of the Defendant No. 1 Dattusingh appears to be that there was one more Will executed in may 1971 by Sundarabai and that the Will dated 26th april 1966 has been revoked by the said subsequent Will. Regular Civil Suit No. 555 of 1976 filed by the said dattusingh is prior in time. The suit filed by the said dattusingh is for declaration that he has become owner of the properties of Sundarabai by virtue of Will of May 1971 and Will dated Z6th April 1966 executed by sundarabai stands revoked. Therefore, it appears that an order was passed in Regular Civil Suit No. 586 of 1976 under section 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"), on 10th june 1980 by which the said suit was stayed till disposal of Regular Civl Suit No. 555 of 1976, It appears that by passing further orders on the plaint at exh. 1, the trial Court proceeded to decide Regular Civil suit No. 586 of 1976 in the absence of Defendant No. 1 dattusigh after his Advocate filed "no instruction pursis". The said suit was decreed on 30th January 1984. In so far as Regular Civil Suit No. 555 of 1976 is concerned, it was pending before another learned Judge and by Judgment and Dacree dated 9th February 1984, the said suit was dismissed. Therefore, Defendant No. 1. Dattusingh filed two separate Appeals in the District court for challenging the Judgments and Decrees passed by the trial Court in the said suits. By a common judgment dated 27th November 1987, the learned Addl, district Judge, Solapur, dismissed the said Appeals preferred by the Defendant No. 1-Dattusingh,