This appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the original defendant no.2 who is aggrieved by the decree for possession passed by the trial Court in favour of the respondent no.1 herein which decree has been confirmed by the appellate Court.

2. The facts giving rise to the present litigation are that one Jairam Lad had two sons namely Gulab and Ajab. Gulab being the elder brother was serving with the Railways till 1987. On account of his service, he was required to reside at various places. It is his case that in 1947, Municipal Plot No.4 came to be purchased out of the funds given to him by the sister of his grandmother-Kasabai. Thereafter, from the funds given by said Kasabai, a building was constructed and Gulab was the owner of the said building since purchase of the said plot. The municipal records also indicated his title. Father-Jairam expired on 01.01.1988. During his lifetime, the plaintiff's father was occupying the said building but he had no right, title or interest therein. All taxes were being paid by the plaintiff. After the death of the plaintiff's father he had come to Saoner on 03.01.1988 alongwith his family. On 20.01.1988, the plaintiff took possession of the entire building and locked the same. This fact was informed to his brother-Ajab by sending a telegram. Subsequently in October 1988 when the plaintiff came to reside at the said building he found that the defendant no.1 his mother Lankabai was occupying the ground floor and his brother-Ajab was occupying the first floor. Though the plaintiff called upon them to vacate the said premises the same was not done. It is on that basis that the plaintiff filed Regular Civil Suit No.251 of 1988 for declaration that he was the owner of the entire building and that his mother and brother had no right therein. Possession of the first floor was also sought from the defendant no.2.

In the suit, the plaintiff had moved an application for temporary injunction. The defendant no.1 Mother filed her reply to the said application at Exhibit 10. The title of the plaintiff was denied. It was pleaded that Jairam had earned extensive property including plot in question during his lifetime. The ground floor of the building on the said plot was constructed by said Jairam in the year 1950. Thereafter two more floors were constructed in the year 1965 after obtaining necessary permission. Jairam and the defendants started residing in the suit premises since 1966. It was then pleaded that after obtaining necessary qualification, the plaintiff secured service and was required to live at various different places on that count. The ground floor of the said building was occupied by Jairam and his wife Lankabai. The shop was being run in the front portion of the said house on the ground floor. Jairam during his lifetime executed a will on 01.10.1987 and had bequeathed the property equally to Gulab and Ajab. It was thus averred that no relief could be granted to the plaintiff and suit was liable to be dismissed.

Thereafter, written statement was filed by the defendant no.1 at Exhibit 27 raising similar pleas as raised in the earlier reply. The defendant no.2 filed pursis and adopted the written statement filed by the defendant no.1. Mother-Lankabai also filed Regular Civil Suit No.261 of 1988 against both her sons with a prayer for permanent injunction stating therein that she was in occupation of the ground floor premises and that her possession should not be disturbed by the defendants. Both the suits were consolidated and common evidence was led therein.

3. The trial Court after appreciating the evidence on record came to the conclusion that the plaintiff-Gulab alone was the owner of the suit site and the building standing thereon. The plaintiff had taken possession of the same after the death of his father and that the defendants had thereafter taken its possession without due notice to the plaintiff. The Will dated 01.10.1987 was held