JUDGMENT :

(Goutam Bhaduri, J.)

1. This appeal is by defendants against the judgment and decree dated 28/05/2018 passed by the learned 3rd Additional District Judge, Raipur, in Civil Suit No.6A/2012 wherein the suit filed by the plaintiff Dr. Ramkumar Chaudhary (since deceased and represented by the legal heirs) against Shiv Kumar Chaudhary (since deceased and represented by the legal heirs) for possession and damages was decreed. During pendency of the suit, the defendant Shiv Kumar Chaudhary died and after the judgment and decree, the appeal is filed by the legal heirs of Shiv Kumar Chaudhary.

2. The brief facts of this case are that, Dr. Ramkumar Chaudhary filed a suit against his brother Shiv Kumar Chaudhary that he owns a house situated at South Avenue, Choubey Colony, Raipur, which was purchased by him from his self earning from Raipur Cooperative Housing Society. It was pleaded that the plot was allotted initially on 01/04/1964 and subsequent to it, the permission to raise construction was obtained on 08/04/1964. Plaintiff further stated that thereafter construction was made from his self earning and subsequent to it the entire tax to the Municipal was being paid by him and respective receipts were also issued in his favour. The plaintiff further stated that Shiv Kumar Chaudhary (the defendant) was the younger brother, since he did not have any place to stay at Raipur and he was wandering into street, he was allowed to stay in the suit house. Pleading further is that after entering into the possession of the suit house, on some pretext or other on the ground that he is financially weak, he continued the occupation, which was allowed, as the defendant was the younger brother.

3. The plaintiff further states that after death of Ramkumar Chaudhary, the suit property devolved in favour of Akshay Kumar Chaudhary and Avinash Chaudhary by virtue of a WILL executed by Dr. Ramkumar Chaudhary, the plaintiff. Therefore Akshay Kumar Chaudhary and Avinash Chaudhary had become the exclusive owner of the said suit house. Plaintiff further pleaded that in the year 2002, when the defendant was asked to vacate the premises, counter demand was made that it is an ancestral property which resulted into exchange of notices and eventually a suit was filed for ejectment and damages by plaintiff against his brother.

4. The defendant denied the averments of the plaint and instead it was said as per the family arrangement, the defendant was in occupation of the suit premises. It was further stated that father of Shiv Kumar Chaudhary and Dr. Ramkumar Chaudhary namely Dr. Dhaniram Chaudhary had purchased the suit property from his self earning, though the allotment was made in the name of Dr. Ramkumar Chaudhary being the eldest son. Defendant further stated that the plaintiff Dr. Ramkumar Chaudhary did not have any income when the purchase was made and father out of love and affection, purchased the property in the name of Dr. Ramkumar Chaudhary. It was stated that the plaintiff did not have any source of income at that point of time. It was further stated that the plaintiff was completely dependent on his brother even to cater his daily needs and Dr. Dhaniram Chaudhary, the father raised the construction over the said plot.

5. It was further stated that during the construction of house, Ramkumar Chaudhary got appointment in the Municipal Corporation and was in occupation of house which was allotted by the Municipal Corporation. It was further pleaded that Ramkumar Chaudhary retired in the year 1992 and before that the defendant was in exclusive possession of the suit house along with his brother Devendra Kumar Chaudhary. Defendant further states that entire money for construction of the house was paid by Dr. Dhaniram Chaudhary and Shiv Kumar Chaudhary was in occupation of the suit house as a co-owner of Hindu undivided family. The defendant further stated that the entire money was paid by the joint ownership.

6. Defendant further pleaded that being