ISHWAR SINGH Vs. DHANO DEVI AND ORS.

JUDGEMENT

(1.) Defendant is in second appeal against concurrent judgments and decrees passed by the Courts below.

(2.) Plaintiffs filed suit for possession of double storied house No. 588 with specific boundaries as depicted in the plaint over which defendant was in unauthorized and illegal possession. Plaintiffs also claimed recovery of Rs. 6,00,000/ - as mesne profit @ Rs. 10,000/ - per month from June 2005 to 15 June, 2010 along with interest @ 18% per annum from the date of illegal possession till actual payment and further direction of payment of mesne profit from the date of filing of suit till vacation of the house with consequential relief of permanent injunction.

(3.) Plaintiffs claimed that they were residents of village Budha Kehra, Tehsil and District Hisar. Plaintiff No. 1 was an old lady and plaintiff No. 2 was a minor. They had no immovable and movable property except the present house. They were financially poor. Plaintiff No. 1 was dependent upon the maintenance which was to be paid by the defendant as father of plaintiff No. 2 had expired. Plaintiff No. 1 was taking care of plaintiff No. 2 being his grand mother. They were indigent persons and had no source of income except the maintenance. They had no means to pay the court fee on the amount so claimed in the suit. Plaintiff No. 1 was the widow of Sita Ram and plaintiff No. 2 was the grand son of deceased Sita Ram. Father of plaintiff No. 2 namely Kuldeep son of Sita Ram had expired and his widow and three minor children are living with plaintiff No. 1 who was taking care of them. Sita Ram died on 12.10.2007. Defendant No. 1 is a son of Sita Ram. Plaintiffs further alleged that Sita Ram was owner of the house in question. The house was got by Sita Ram through Civil Court decree suffered by his father in his favour. He was absolute owner in possession of the house. He bequeathed the house in favour of plaintiffs through Will. Defendant had thrown out the plaintiffs including children of deceased Kuldeep, his widow and Sita Ram from the house in question in the month of June 2005 and since then, he is in illegal and unauthorized possession of the house. The house was constructed by Sita Ram about 40 years ago and he executed a registered Will No. 59 dated 04.10.2007 in favour of plaintiff in respect of this house. Plaintiffs being lawful heirs were entitled to the estate of deceased Sita Ram. Plaintiffs filed a petition under Sec. 276 of Indian Succession Act for grant of letter of probate in favour of petitioners, which was accepted by the Court of Additional District Judge, Hisar vide order dated 04.06.2010, wherein it was held that whether the plaintiffs were entitled to possession of the house which was beyond the jurisdiction of the Court granting probate. However, probate regarding Will was duly granted in favour of plaintiffs. Plaintiffs further alleged that the defendant had no right to retain the possession of the house in question because it was self acquired property of Sita Ram and he bequeathed the same in favour of plaintiffs by way of registered Will. Plaintiffs were lawful owners of the house by dint of registered Will and as per letter of probate granted by the Competent Court defendant was in illegal possession of the house in question. With this background, the suit came to be filed with the prayer as mentioned in the preceding para.