CHANDER SHEKHAR Vs. UMA DATT

JUDGEMENT

(1.) APPELLANTS are the plaintiffs and the respondents are the defendants. The suit was filed by the appellants- plaintiffs in the Court of Sub Judge 1st Class, Court No.2, Paonta Sahib, wherein it was prayed that a decree for possession of the portion of the house being the subject matter of the suit by ejecting the defendants from the said premises be passed in favour of the plaintiffs- appellants and against the defendants- respondents. The basis of making such prayer for passing such decree for possession was the alleged execution of a Will on 13th August, 1986 by 1 Whether Reporters of Local Papers may be allowed to see the judgment? late Babu Ram Shastri, testator who died at Paonta Sahib on 28th October, 1991. The appellants' claim in the suit was that the testator before his death had executed the aforesaid Will on 13th August, 1986, which was registered in the office of Sub Registrar, Paonta Sahib on the same day, whereby, besides distributing his other properties he had bequeathed the house in question in favour of the plaintiffs to the exclusion of everybody except the limited inclusion of his wife Smt. Saroj to the extent that she was allowed right of residence in the said house during her life-time.

(2.) THE suit was resisted by the defendants- respondents. The factum of the execution of the Will by the testator on 13th August, 1986 was denied by the defendants and it was pleaded by them that this was a result of fraud, misrepresentation and forgery. It was also pleaded in the written statement filed in answer to the suit that on 26th September, 1992 the plaintiffs had executed an agreement in favour of the defendants wherein and whereby they had agreed to pay Rs.75,000/- to the defendants within a period of two years from the date of execution of the agreement. This agreement also stipulated that if this payment was not made the defendants would be deemed to be the owners of the suit property as the plaintiffs would admit them as such owners. Copy of this agreement was produced in the trial Court and has been exhibited as Ex.D-1 therein.

(3.) LEARNED trial Court decided all the issues in favour of the plaintiffs especially the all important issue relating to the execution of the Will dated 13th August, 1986, being Issue No.1 and passed the decree for possession in favour of the plaintiffs after the ejectment of the defendants from the suit property. Defendants were directed to hand over the possession of the suit property to the plaintiffs at once. The plaintiffs' claim for grant of mesne profit, however, was not allowed. Aggrieved, the defendants preferred a Regular First Appeal against the aforesaid judgment and decree. The learned Additional District Judge, Sirmaur District at Nahan, vide his judgment and decree dated 1st May, 1998 passed in Civil Appeal No.25-N/13 of 1995 by setting aside the judgment and decree passed by the learned trial Court remanded the case to the learned trial Court with two fold directions; firstly, to take the amended plaint from the plaintiffs-appellants impleading Smt. Saroj the widow of the testator and thereafter to obtain from her written statement and then to try the suit afresh, and secondly, to frame necessary issues with regard to the aforesaid agreement dated 26th September, 1992 ( Ex.D-1), also take additional evidence if required and decide the case afresh in accordance with law. The appellants have assailed the aforesaid impugned judgment and decree of the learned Additional District Judge on a number of grounds.