BASANTI MAHORE AND ORS Vs. GANESH AND ANR

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India has been preferred by the plaintiffs challenging thereby order dated 01.09.2009 (Annexure P-11) and order dated 13.10.2009 (Annexure P-12) passed by the court of II Additional Civil Judge, Class II, Gwalior in Civil Suit No. 98A/2009.

(2.) Facts giving rise to the writ petition are that the suit house situated in Jari Patka, Phalka Bazar, Lashkar, Gwalior was purchased by plaintiffs' father, namely Ramdayal during latter's lifetime through auction in Execution Case No. 104/69x74 Manorama and Ors. v. Nazar Mohd., from the court of III Civil Judge, Class II, Gwalior. Sale Certificate was issued in his favour on 17.08.1977 by the Executing Court. He submitted an application for obtaining possession before the Executing Court which was registered as MJC No. 83/2008, after transfer of the case to the Court of VIII Civil Judge, Class I Gwalior. Ramdayal died on 11.04.1994. Plaintiffs' mother Kamla Devi died on 28.05.1997. Ramdayal died intestate. According to plaintiffs/petitioners, Ramkishore prepared a forged Will in his favour, allegedly executed by Ramdayal on 12.02.1994. Defendant/respondent No. 1 after death of Ramkishore prepared a forged Will allegedly executed by Ramkishore on 21.01.1998. Ramkishore and thereafter defendant/ respondent No. 1 got their names substituted in place of Ramdayal on the basis of the aforesaid alleged forged and concocted Wills. Defendant/respondent No. 1 submitted an application for issuance of warrant of possession in his favour which was objected to by the plaintiffs on the ground that the alleged Wills in favour of Ramkishore and defendant/respondent No. 1 are forged and concocted one.

(3.) According to petitioners, they being legal heirs of Ramdayal are entitled to possession pursuant to the sale certificate issued in favour of Ramdayal. This was opposed by defendant/respondent No. 1. Ultimately, the Executing Court vide its order dated 05.08.2008 (Annexure P-5) directed the defendant/respondent No. 1 to submit an undertaking that in case of establishment of right of objectors (i.e. the plaintiffs/petitioners in the present case), he shall immediately handover possession of the suit house to the petitioners and in case of failure, he shall be liable to pay damages/compensation until restoration of possession.