NISAR AHMED Vs. TAUKIR AHMED

JUDGEMENT

(1.) APPELLANT -defendant has preferred this first appeal under Section 96 Code of Civil Procedure, 1908 (for short, 'CPC') to challenge impugned judgment and decree dated 5th of January, 2015 passed by Additional District Judge No. 2, Bikaner (for short, 'learned trial Court'), whereby the learned trial Court has decreed the suit for eviction filed by the respondent -plaintiff against the appellant -defendant.

(2.) THE facts, in brief giving rise to this appeal, are that respondent -plaintiff instituted a civil suit for eviction against the appellant -defendant from part of the premises owned by him. It is, inter alia, averred in the plaint that appellant is in occupation of part of the premises, i.e., one room as a licensee. The respondent set out a specific case in the plaint that the entire property including the room, in which appellant is a licensee, was owned by his father -in -law, Mohd. Ibrahim and, during his lifetime, Mohd. Ibrahim bequeathed the said property in his name on 13th of May, 2005 by a registered Will. In the plaint, it is specifically averred that Mohd. Ibrahim passed away on 6th of September, 2006, and therefore, since his death, respondent is in occupation of the entire property as its owner. As regards the room in occupation of appellant, it is averred in the plaint that Mohd. Ibrahim, during his lifetime, permitted his brother, appellant, to occupy the said room of the property as licensee and, after his death, appellant is continuing in occupation of the room as per permission of the respondent. It is also pleaded in the plaint that respondent is in need of the premises for his family and, for that purpose, a notice was served upon the appellant on 13th of April, 2009, whereby his licence was terminated and he was asked to hand over the possession of the room. When the appellant declined to hand over the possession, it became imperative for the respondent to lay the suit. As per version of the respondent, in Sikkan Bhisti Mohamedan, there was a custom in vogue of executing a testamentary instrument since long and the said custom is prevailing for last more than 400 years. According to respondent, earlier appellant made an attempt to derive title of the property and that prompted Mohd. Ibrahim to institute a civil suit against him, which was decreed on 7th of April, 2005 and, on an appeal, the said decree was affirmed by the learned appellate Court. With all these averments, respondent sought a decree for eviction against the appellant from the disputed premises, particulars of which were incorporated in para 2 of the plaint. The respondent further claimed mesne profit @ Rs. 700/ - per moth w.e.f. 01.05.2009 till actual possession is handed over.

(3.) AFTER submission of written statement, on behalf of respondent, additional pleadings were filed, wherein the facts averred in the plaint were reiterated. As regards execution of Will by Mohd. Ibrahim, it is specifically pleaded by the respondent that the same has been executed strictly in accordance with law and it has conferred valid title on the respondent. The respondent has also pleaded that appellant is bound by the Will and his objection about validity of Will is barred by limitation for the reason that same was within his knowledge right from the date of its execution.