SHIVMANGAL Vs. NARAINPRASAD

JUDGEMENT

(1.) THIS appeal is by the plaintiff. He lost in the Trial Court. Dispute relates to the residential house situated in Dewas more particularly described in Para 4 of the plaint. Plaintiff sought declaration, possession and permanent injunction in respect of the suit house supra.

(2.) IN this appeal, it is admitted that the suit house belonged to ramcharanlal who died issueless on 5-6-1980. He had executed a power of attorney in favour of defendant No. 1 Narainprasad, for collection of the rent from the tenants residing in the suit house. The defendant No. 2 is the son of brother-in-law (wife's brother) of Ramcharanlal. It is also not in dispute that shivcharanlal (original plaintiff) was the first cousin through male side of ramcharanlal and Shivmangal, who subsequently came on record as the legal representative of Shivcharanlal was the son of real sister of late Ramcharanlal.

(3.) SHIVCHARANLAL filed the suit seeking declaration that Ramcharanlal died intestate and the plaintiff, being sole surviving heir was entitled to inherit by way of succession the suit property of Ramcharanlal. He further claimed that he was entitled to the possession of the suit property and defendants should not interfere with the enjoyment of property. It is pertinent to point at this stage that during the pendency of suit original plaintiff died, and Shivmangal came on record under Order XXII, Rule 5 by way of substitution based upon a Will executed by Shivcharanlal in his favour. In the written statement, the basic contention was that Ramcharanlal until his last, lived with his brother-in-law, i. e. , father of defendant No. 2, and the former on his accord, willing executed a will in favour of defendants before he died.