RAJESH KUMAR Vs. MANGAT RAI AND OTHERS

JUDGEMENT

(1.) In this revision petition filed under Art. 227 of the Constitution of India, petitioner-defendant No.7 has prayed for setting aside the order dated 29.9.2010 (Annexure P-1) vide which the application filed by him for leading additional evidence was dismissed by the trial court.

(2.) The facts necessary for adjudication as narrated in the present petition are that one Jagan Nath Madhar, Advocate, Ferozepur was the owner in possession of a residential house bearing No. ES- 31/8, outside Delhi Gate, Ferozepur City. He died on 28.2.1987 leaving behind his widow Satya Wati and a son Kamal Kant Madhar as his only legal heirs. Said Jagan Nath executed a Will dated 4.1.1987 in favour of his son Kamal Kant Madhar who after the death of Jagan Nath became exclusive owner in possession of the house in dispute. Kamal Kant Madhar expired on 26.6.1995 leaving behind his mother Satya Wati and respondents No.2 to 6 as his legal heirs. On the basis of natural succession, Satya Wati became the owner of th share while respondents No.2 to 6 inherited th share. After the death of Kamal Kant, the relations between respondents No.2 to 6 and Satya Wati became strained and she joined hands with the plaintiff-respondent No.1, who is the real brother of Satya Wati. As Satya Wati wanted to sell the entire house, respondent No.2 to 6 filed a suit for declaration stating therein that they were owners in possession of th share on the basis of Will dated 4.1.1987 executed by Jagan Nath Madhar in favour of Kamal Kant Madhar and further on the basis of natural inheritance from Kamal Kant Madhar and for permanent injunction restraining Satya Wati from alienating beyond th share in the house. Along with the suit, respondents No.2 to 6 also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure seeking temporary injunction restraining Satya Wati from alienating more than th share in the house. The trial court vide order dated 8.8.1996 allowed the said application and restrained Satya Wati from alienating more than th share in the house. Feeling aggrieved, Satya Wati filed an appeal against the order dated 8.8.1996 and the said appeal was dismissed by the appellate court vide order dated 5.5.1997. The suit was contested by Satya Wati by filing a written statement. During the pendency of the suit, Satya Wati died on 12.2.1998. On the demise of Satya Wati, her estate devolved upon respondents No.2 to 6 under the provisions of Hindu Succession Act and since she was the only defendant, respondents No.2 to 6 withdrew the suit on 27.2.1998. Subsequently, respondent No.2 transferred her th share in the house in question by sale in favour of respondent No.7 through a registered sale deed dated 11.5.1998. Respondent No.2 filed an application under the provisions of Hindu Minority and Guardianship Act seeking permission to sell th share of respondents No.3 to 6 who were minors. The said application was allowed by the Guardian Judge, Ferozepur vide order dated 27.4.1999 and respondent No.2 with the permission of the court, transferred th share of the minors in the house in question in favour of the petitioner through a sale deed dated 3.6.1999 which was registered on 14.6.1999. On the basis of the aforesaid two sale deeds, the petitioner along with respondent No.7 had become the owners in possession of the house in dispute.

(3.) Plaintiff-Respondent No.1 filed a suit for declaration against the petitioner and respondents No.2 to 7 alleging therein that Jagan Nath Madhar executed a Will dated 23.11.1986 in favour of his wife Satya Wati and after his death, Satya Wati became the owner of the house in question on the basis of said Will. It was further alleged that Satya Wati, who is his real sister, executed a Will dated 4.9.1996 in his favour. After the death of Satya Wati on 12.2.1998, he became the owner in possession of the house in question. The said suit was contested by respondent No.2 to 7 by filing written statements controverting the averments made in the plaint.