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Dinesh Kumar v. Mahngu Ram and Ors. - (High Court of Delhi) (01 May 2017)

Making of construction by spending of moneys would not make Appellant anything more than a licensee



Present Regular Second Appeal under Section 100 of Code of Civil Procedure, 1908 (CPC) is filed by Defendant in suit impugning concurrent judgments of Courts below; of trial Court and First Appellate Court; by which Courts below have decreed suit for possession with respect to suit property. Appellant/defendant did not dispute that, suit property was owned by Plaintiff and that he came in suit property as a licencee of Plaintiff, however, Appellant/Defendant claimed that, he had spent a sum of Rs. 3 lacs in making construction on property and therefore, he had become the owner thereof.

Original Plaintiff had expired during pendency of suit and therefore, present Respondent No. 1 was substituted as Plaintiff in place of Original Plaintiff in terms of registered Will. There was no dispute that, Plaintiff was owner of suit property. Courts below have rightly held that, making of construction by spending of moneys by Appellant/defendant will still not make Appellant/Defendant anything more than a licensee.

Respondent No. 1 has proved the Will by calling two attesting witnesses. In cross-examination, both witnesses have stood their ground and denied that, they were not called by Original Plaintiff. Attesting witnesses also denied that, Will was forged and fabricated by them in collusion with Respondent No. 1. Attesting witnesses also reiterated their statement in examination-in-chief. Therefore, Court opined that, Respondent No. 1 has succeeded in proving registered Will in his favour.

There is also no reason to doubt Will in favour of Respondent No. 1 as bad relations between Appellant/Defendant and late Plaintiff Ram stood well established on record. Fact that, Original Plaintiff was not living in suit property, and Appellant/Defendant was living in suit property is in proof itself of bad relations of Plaintiff. There was no reason why Original Plaintiff would not execute Will in favour of Respondent No. 1 who was said to be taking care of Original Plaintiff in his old age and after death of wife.

It is not necessary that, attesting witness to the Will, PW-3 should have personally known Respondent No. 1, Sh. Pawan Kumar, as, this attesting witness knew Original Plaintiff and has deposed with respect to execution and attestation of Will as also the fact that, he was called by late plaintiff Original Plaintiff for attesting Will. High Court observed that, no substantial question of law arises for present Regular Second Appeal to be entertained under Section 100 of CPC and accordingly, dismissed appeal.


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