K PULLAIAH Vs. K GOWRAIAH

JUDGEMENT

(1.) This Civil Revision Petition is directed against the order- dated 3-8-2005 in I.A.No. 1077 of 2005 in I.A.No.1545 of 2004 in O.S. No.458 of 2004 on the file of the Court of II-Addl. Junior Civil Judge, Kurnool.

(2.) The revision petitioner is the defendant in O.S.No.458 of 2004 which is filed by the respondent herein seeking eviction of the revision petitioner from the upstair portion of the suit schedule house and also claiming danaages for use and occupation at the rate of Rs. 3,000/- per month.

(3.) For the sake of convenience, the petitioner and the respondent are hereinafter referred to as 'the defendant' and 'the plaintiff' respectively as they were arrayed in the suit. It is not in dispute that the plaintiff and the defendant are brothers. The plaintiff filed O.S.No.458 of 2004 claiming that he had succeeded to the suit schedule house under a Registered Will dated 24-11-1997 executed by their father. The defendant in his written statement contended inter alia that the will dated 24-11-1997 was not genuine and the same was brought into existence under suspicious circumstances. He claimed possession of the upstair portion of the suit schedule house as rightful owner. It is also not in dispute that earlier the defendant filed O.S.No.22 of 1998 on the file of the Court of Additional Senior Civil Judge, Kurnool for partition of the joint: family properties including the house covered by the Will dated 24-11-1997 which is the subject matter of O.S.No.458 of 2004. The plaintiff in O.S.No.458 of 2004 (suit for eviction) who was the 2nd defendant in the said suit for partition filed a written statement pleading that there was a prior partition. After full-fledged trial, the suit for partition was decreed partly. In respect of Item Nos. 1 to 5 of the suit schedule properties including the house property covered by the Will dated 24-11-1997, the suit was dismissed. Aggrieved by the same, the plaintiff in O.S.No.22 of 1998 (defendant in O.S.No.458 of 2004) filed A.S.No. 1398 of 2004 before this Court. While the said appeal is pending, the present suit i.e., O.S.No.458 of 2004 has been filed for eviction.