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Court No. - 6

Reserved

A.F.R.

Case :- SECOND APPEAL No. - 313 of 1997

Appellant :- Ram Singh

Respondent :- Amar Singh and others

Counsel for Appellant :- Mr. Vijay Kumar Rai, Advocate

Counsel for Respondent :- Mr. K.K.Tiwari, Advocate

Hon'ble J.J. Munir,J.

This is a plaintiff’s second appeal arising out of a suit for

permanent prohibitory injunction.

2.

This appeal was admitted to hearing on 1^st of April, 1997

on the sole substantial question of law, to wit: “Whether on the

basis of positive averments in the written statement of the

defendants that they were owner of the suit property on the

basis of the Will and were in possession of the suit property as

against the plaintiff’s case of the title and possession, lower

appellate Court should have dismissed the suit on the mere

ground of absence of cause of action?”

3.

The facts giving rise to this appeal are these:

Ram Singh instituted Original Suit No. 494 of 1992 in the

Court of the Munsif, Rampur against Amar Singh and six other

defendants, seeking relief of permanent prohibitory injunction to

the effect that the defendants, their servants and agents be

restrained from forcibly dispossessing the plaintiff from the suit

property comprising Plot Nos. 82 and 190 or interfering in his

possession in any manner whatsoever. Amar Singh, defendant

No. 1 is the plaintiff’s father’s brother, whereas other

defendants are said to be his father’s brother’s sons. The

plaintiff-appellant, Amar Singh, who shall hereinafter be called

‘the plaintiff’, was a young man of 20 years, when he instituted

the suit. His father, Kunwar Sen passed away after a brief

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illness on 13^th of January, 1990. He was otherwise fit and

healthy and aged about 50 years at the time of his demise. The

plaintiff’s father was the bhumidhar in possession of Plot No.

82, admeasuring 0.097 hectare and Plot No. 190, admeasuring

0.507 hectare, situate at Village Sendu Kaa Majra, Tehsil Swar,

District Rampur. The said property shall hereinafter be called

‘the suit property’.

4.

Upon the sudden death of the plaintiff’s father, the plaintiff

was left all alone, his mother having pre-deceased his father.

The suit property, in consequence of his father’s death,

devolved upon the plaintiff and his name was recorded in the

revenue records on 05.02.1990 by intestate succession. The

plaintiff, thus, became bhumidhar in possession of the suit

property.

5.

It is the plaintiff’s case that defendant No.1, his father’s

brother and the other defendants, his cousins, are vicious men,

who harbour foul intentions. The defendants, without any right,

foster the desire to take possession of the suit property, harm

the plaintiff, posing a threat to his life and property. The

defendants’ intention is to usurp the plaintiff’s property. It is the

plaintiff’s case that the defendants have no title, interest or

share in the said property nor are they in possession thereof.

The defendants allege some kind of a right to the suit property

on the basis of a Will. After the demise of the plaintiff’s father,

the defendants in order to harm the plaintiff, have secured

some bogus and fictitious Will, purportedly executed by the

plaintiff's father in the defendants’ favour.

6.

It is the plaintiff’s case that his father was in good health

and died after a brief illness. The Will attributing to him a

testamentary disposition is the product of forgery. It is void. It

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has no binding effect upon the plaintiff. The plaintiff is the only

son and the sole heir entitled to inherit his father’s estate.

7.

According to the plaint case, the defendants, without any

right and in breach of the law, on 21.07.1992 attempted to

forcibly trespass into the suit property and endeavoured to till it.

They wanted to forcibly dispossess the plaintiff, but with the aid

of third parties, the plaintiff repelled the attempted

encroachment by the defendants. The defendants, however,

went away extending