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Reserved on :- 06.08.2021

Delivered on :- 25.08.2021

Case :- FIRST APPEAL No. - 748 of 2013

Appellant :- Kamlesh Kumar

Respondent :- Umesh Kumar

Counsel for Appellant :- Ashish Agrawal

Counsel for Respondent :- Archit Mehrotra

Hon'ble Siddharth,J.

1. Heard Sri Ashish Agrawal, learned counsel for the

defendant/appellant and Sri Manish Goyal, learned Senior Counsel

assisted by Sri Archit Mehrotra, learned counsels for the

plaintiff/respondent.

2. This first appeal has been preferred by the defendant/appellant

against the judgement and decree dated 21.09.2013 passed by

Additional Civil Judge (Senior Division), Court No. 6, Ghaziabad

in Original Suit No. 1057 of 2009 (Sri Umesh Kumar Vs. Sri

Kamlesh Kumar).

3. The plaintiff’s case is that the plaintiff and the defendant are real

brothers. Their mother and father were late Smt. Shanti Devi and

late Smt. Kanti Swaroop Singhal respectively. The mother of the

parties purchased a semi-constructed house no. K.G-26, Kavinagar,

Ghaziabad, by means of a registered sale deed dated 02.09.1983

from Sri Jagdish Chandra Mittal. After purchasing the house, she

got the ground floor fully constructed having four rooms drawing

room, kitchen, toilet etc., and one room, verandah, kitchen, toilet

etc., on the upper portion. On 02.06.2020, the Ghaziabad

Development Authority executed a freehold deed in favour of the

mother of the parties. The mother of the parties, Smt. Shanti Devi,

executed a will dated 31.07.2004 and she died subsequently on

25.12.2004. As per the aforesaid will dated 31.07.2004, the entire

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ground floor of the House No. K.G-26, Kavinagar, Ghaziabad, shall

remain in the ownership and possession of Kamlesh Kumar and the

entire portion on the first floor shall remain in the ownership and

possession of Umesh Kumar. They shall use their share of property

as per possession and the remaining property was given to the third

brother of the parties, Lokesh Kumar. The plaintiff wants to make

constructions on the upper floor. He requires sanctioning of map

from Ghaziabad Development Authority. For getting loan from the

bank, he needs a document of title regarding his share in the

property in dispute. The plaintiff requested the defendant to execute

the documents in Nagar Nigam and other offices, as per the will. He

kept on avoiding him on some pretext or the other. The plaintiff has

retired from his job in June, 2007 and doing temporary job at Noida.

He wants to live in the house in his share and wants to get the same

constructed further. The cause of action for filing suit arose in the

month of May, 2009 when the defendant refused to execute

documents in favour of the plaintiff in government offices. Hence,

the suit was instituted praying for a decree of declaration that the

plaintiff is the owner of the entire upper storey of House No. K.G-

26, Kavinagar, Ghaziabad.

4. The defendant filed his written statement stating that in paragraph

nos. 8 and 9 thereof that the plaintiff has no right to raise any

construction in the suit property. In additional pleas, it was stated

that the suit is founded upon an unprobated will. Hence, not

maintainable. It was further stated that by virtue of the will, the

lower portion of the property in dispute was given to the defendant

and upper portion to the plaintiff to use and utilize their respective

shares as they liked. Their deceased mother further gave preferential

right to the defendant that in the event, the plaintiff intends not to

live there, he will dispose of the property in consultation with the

defendant. In paragraph no. 16 of the written statement, the

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defendant claimed that both the parties are in possession over their

respective constructed portions of the house and their staircase as

well as the roof above the first floor is the joint property of the

parties and regarding them, the plaintiff has no right to claim any

exclusive right. The entire building is old one and it