ANITA BERI Vs. RAKESH MOHINDRA

JUDGEMENT

(1.) This petition is instituted against the order dated 3.6.2014 rendered by the learned Civil Judge (Sr. Divn.) Kasauli, District Solan, H.P., in CMA No. 36/6 of 2014 in Civil Suit No. 170/1 of 2006.

(2.) Key facts, necessary for the adjudication of the petition are that the petitioner (hereinafter referred to as the plaintiff ) and Smt. Anila Sood have filed a suit under Section 34 and 38 of the Specific Relief Act, 1963, for declaration that the respondentdefendant (hereinafter referred to as the defendant) has no right, title or interest over the suit property in any manner and plaintiffs are in possession of the same. Consequently, defendants be restrained from causing any type of loss, injury and doing any such act which may in any manner, cause prejudice to the user, possession and title of the plaintiff qua the suit property. The subject matter of the suit is part of the land defined as Survey No. 41, Kasauli Cantt. Tehsil Kasauli and structures/buildings more specifically known as Dharma Prakash, Homestead . One late Sh. Duni Chand Advocate was owner in possession of land comprised in Survey No. 41, measuring 2.31 acres described as Kildare Estate Homestead Dharma Prakash. Late Sh. Duni Chand, during his life time executed a gift deed with regard to the property owned by him which was registered as deed No. 2 with Sub Registrar, Kasauli. He gifted his properties to his son Justice late Sh. Tek Chand. Justice late Sh. Tek Chand became owner-inpossession of the suit property. Justice late Sh. Tek Chand expired on 16.6.1996 leaving behind two daughters Smt. Anila Sood and Smt. Anita Beri and one son Sh. Vikram Dhanda. Justice late Sh. Tek Chand during his life time executed a legal and valid will in favour of plaintiff No. 2, Smt. Anita Beri, which was duly registered with Sub Registrar Chandigarh, as deed No. 410 dated 19.6.1984. The mother of defendant was step sister of Justice late Sh. Tek Chand. He was using portion of house known as Homestead with the permission of plaintiff No. 2, namely, Smt. Anita Beri. She came to know that defendant was misusing the license and raised some illegal construction in the shape of platform, so as to use the same for the purpose of car parking. According to the plaintiff, defendant has no right, title or interest over the suit property and as such could not change the nature of the same. A legal notice was issued on 5.11.2006. Reply was sent by the defendant to the same. The defendant has also started causing obstruction to the path which leads from circular road to Homestead cottage and Homestead building . Plaintiff No. 2 has requested the defendant not to lock the gate. However, the lock on the gate has been put to cause temporary obstruction, hindrance and prejudice to the user of the suit property by plaintiff No. 2.

(3.) The written statement was filed by the defendant to the plaint. Replication was filed to the written statement. Plaintiff No. 2 has already led evidence. However, when the evidence of defendant was led, he moved an application under Section 65 of the Indian Evidence Act, 1872, read with Section 151 CPC, for leading secondary evidence for grant of permission to prove the letter of disclaimer Ext. DW-2/B, executed by Justice late Sh. Tek Chand on 24.8.1982, by way of secondary evidence.