PARSHOTAM LAL SHARMA Vs. SUBHASH CHAND SHARMA

JUDGEMENT

(1.) Plaintiff-appellant is in the regular second appeal against the judgments passed by the courts below, dismissing his suit for mandatory injunction directing the defendant to deliver the vacant possession of House nos.6034, 6034/1, 6034/2 and 6034/A, Machi Mohalla, Ambala Cantt/Ambala Sadar and for recovery of Rs.36800.00 as compensation/damages for use and occupation of the building @ Rs.1500.00per month till the date of delivery of possession and future interest.

(2.) Undisputed facts are that Smt. Daya Wanti, mother of both the parties purchased the property on 18/9/1974. Both the brothers, namely the plaintiff and the defendant were living along with the mother. Smt. Daya Wanti executed a registered Will dtd. 29/3/1993 in favour of the plaintiff-appellant. After the death of Smt. Daya Wanti, plaintiff filed a suit for mandatory injunction directing the defendant to hand over vacant possession of the portion which was in the possession of the defendant.

(3.) Defendant contested the suit and pleaded that mother has never executed any Will in favour of the plaintiff. It may be significant to note here that the defendant had previously filed a suit for exclusive possession by way of partition of the property in dispute. The aforesaid suit was defended by the plaintiff-appellant herein (defendant in the aforesaid suit) on the basis of registered will executed by mother of the parties dtd. 29/3/1993. The aforesaid suit was dismissed and in appeal the judgment was upheld. The court held that the Will is genuine and proved on file.