RAMSWAROOP Vs. BEJANTI BAI

JUDGEMENT

(1.) THE respondent No.1 / plaintiff filed a suit for declaration and permanent injunction (Annexure P/2). It is stated in the suit that plaintiff and defendant No.2 are real sisters, whereas defendant No.1 is the mother of plaintiff and defendant No.2. The father of the plaintiff Shri Devi Dayal expired on 29.03.1979. Devi Dayal by way of registered will dated 22.01.1979, gave the property to the plaintiff. The plaintiff is residing in the house and is in possession of house after the death of Devi Dayal. It is the case of plaintiff that after the death of Devi Dayal she being the successor and daughter is entitled to enjoy the property and a declaration needs to be issued in this regard. During the pendency of suit, the present petitioner preferred an application under Order 1 Rule 10 C.P.C. (Annexure P/4). The Court below rejected the said application by impugned order 01.11.2012. This order is under challenge in this petition filed under Article 227 of the Constitution.

(2.) SHIR Sanjay K. Mishra, learned counsel for the petitioner, urged that the defendant No.1 / Smt. Ram Bai cancelled the earlier will and by registered will dated 28.07.1997 gave the property to the petitioner/ applicant. The name of petitioner is duly mutated in the record of Vidisha Municipality. It is further stated that the petitioner is in possession and residing in the said house. Shri Mishra submits that the Court below has erred in rejecting the said application. Petitioner is a necessary party and therefore, Court below should not have rejected the application.

(3.) I have heard learned counsel for the parties and perused the record.