Hon’ble Anil Kumar, J.—Heard Sri Ashish Kumar Srivastava, learned counsel for the appellant, Sri Nipun Singh, learned counsel for the respondent and perused the record.

2. Facts, in brief, of the present case are that plaintiff/respondent, Sri Kanhaiya Lal Kasera filed a suit for eviction against Sri Chhotey Lal Kasera, appellant-defendant from House No. C.K. 18/31 Mohalla Thatheri Bazar, Varanasi (hereinafter referred to as ‘house in question’).

3. Pleadings as pleaded by plaintiff/Sri Kanhaiya Lal Kasera in his plaint are that Sri Kanhaiya Lal Kasera and Sri Chhotey Lal Kasera are real brother and their father Shanker Lal Kasera executed a will-deed dated 4.12.1973 registered on 10.12.2973 by virtue of the same, house No. C.K. 18/31 came to his share and house No. C.K. 61/11 to his elder brother Sri Chhotey Lal Kasera.

4. Sri Shanker Lal died on 17.10.1974 and at the time of his death of both are living together in House No. C.K. 18/31, doing business from the firm known as M/s Chhotey Lal and Kanhaiya Lal Kasera.

5. On 13.10.1997 an another firm has been registered and started functioning from the house in question known as Ganga-Jamuna Art, Smt. Shashi Kal Kasera, wife of plaintiff/Sri Kanhaiya Lal Kasera is the proprietor of the firm.

6. It has also been pleaded on behalf of the plaintiff that defendant/Chhotey Lal Kasera is residing in the house (C.K. 18/31) in the capacity of licensee however, in spite of the request when he has not vacated the same, plaintiff has sent a registered notice dated 21.11.2003 to vacate the house, served on 24.11.2003 but no heed has been paid, so a Regular Suit No. 541 of 2005 (Kanhiya Lal Kasera v. Chhotey Lal Kasera) has been filed in the Court of Civil Judge(Senior Division) Varanasi.

7. Sri Chhotey Lal Kasera/defendant filed written statement denying the case as set up by plaintiff and pleaded that both the brothers are residing in the capacity of owner in the house in question belongs to their grandfather Sri Ayodhya Prasad, died in the year 1948, after his death Sri Shanker Lal(father) has executed a will-deed dated 10.12.1973 in respect to houses namely, C.K. 18/31 and 61/11 but he has got no authority to execute the same rather the said act on his part is void ab initio as per Hindu Law prevailing at that point of time.

8. After exchange of pleadings and taking into consideration the material evidence (oral/documentary)on record, the trial Court by means of judgment and decree dated 30.7.2010 decreed the suit filed by plaintiff Kanhiya Lal Kasera holding that the will executed by Sri Shanker Lal is a valid document acted upon by the parties, the same has been challenged by defendant/appellant Chhotey Lal Kasera by filing Civil Appeal No. 94 of 2010 (Chhotey Lal Kasear v. Kahaiya Lal Kasera).

9. Appellate Court in order to decide the controversy as per Order 41 Rule 31 CPC, framed the following points of determination :

Þ1- D;k fnukad 10-12-1973 dks Lo0 'kadj yky dlsjk ds }kjk oklhgrukek fu"ikfnr fd;k Fkk vkSj ;fn gk¡ rks D;k mUgsa mDr oklhgrukek fu"ikfnr djus dk vf/kdkj ÁkIr Fkk\

2- D;k fnukad 114-7-1999 ds okgeh caVokjk ds vk/kkj ij Áfroknh fookfnr edku dk Lokeh gS\

3- D;k fookfnr edku esa Áfroknh dks oknh us orkSj fylsalh jgus dh vuqefr Ánku fd;k Fkk\

10. Appellate Court by judgment and decree dated 12.11.2010 dismissed the appeal by giving findings that will-deed dated 10.12.1973 executed by Shanker Lal is valid one and by virtue of the same the house No. 18/31 came to the share of Kanhaiya Lal. Further, appellate Court has upheld the findings given by trial Court that in a regular suit No. 15 of 1982 (Shitla Vs. Chotey Lal and others) filed by one Sri Shitla Prasad, Sri Chhotey Lal Kasera and Sri Kanhiya Lal Kasera were impleaded as respondents, filed their written statement signed by both of them, verified by Sri Chhotey Lal, accepting the execution of Will by Sri Shankar Lal thereafter in the said matter compromise has been entered between the parties and Will executed