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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

JUDGMENT

IN

S.B. Civil Second Appeal No.165/1984

Gopal S/o Shri Ramjilal

...defendant-appellant

Versus

Raghuveer S/o Shri Parsadi

...plaintiff-respondent

Date of Judgment ::: 18^th of August, 2006

PRESENT

HON’BLE MR. JUSTICE NARENDRA KUMAR JAIN

Shri G.K. Garg with

Mrs. Sangeeta Sharma for defendant-appellant

Shri R.P. Agarwal for

Shri B.P. Agarwal for the plaintiff-respondent

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By the Court:-

The defendant-appellant has filed this second

appeal under Section 100 of the Code of Civil Procedure

(for short, 'the C.P.C.') against the judgment and decree

dated 18.4.1984 passed by the Additional District Judge

No.1, Bharatpur, whereby he dismissed the appeal of the

defendant-appellant and affirmed the judgment and decree

dated 11.1.1983 passed by the

Munsiff

& Judicial

Magistrate, Weir, District Bharatpur, in Civil Suit

No.56/1976, whereby the suit of the plaintiff-respondent

for declaration and permanent injunction was decreed.

This court, while admitting the second appeal on 7^th

of August, 1984, formulated the following questions of

law:-

“1. Because the learned court

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below made a mistake of law and

gave perverse finding that since

defendant could not prove that

Bhoti had any other house in

Helna, except the house in

question, therefore, it is fully

proved that the Gharghuda in the

alleged will was in respect of

the house in question.

2. Whether in a suit for

declaration

and

permanent

injunction, relief of the

possession could be given

without averment in the plaint?”

Brief facts giving rise to this second appeal are

that the plaintiff-respondent Raghuveer filed a suit for

declaration and permanent injunction in the lower court

against defendant-appellant Gopal, wherein it was pleaded

that Mst. Bhoti was aunt of the plaintiff. She executed a

registered will dated 30.5.1975 in respect of her movable

and immovable property in favour of the plaintiff. The

description of the disputed property, i.e. piece of land,

was given in Para 4 of the plaint. It was further pleaded

that the defendant has no right whatsoever in the property,

in dispute. On 29.1.1976 the defendant started digging the

foundation to raise construction of a house over the

disputed piece of land, therefore, it became necessary for

the plaintiff to file the present suit to declare that the

disputed property belongs to the plaintiff and the

plaintiff is the actual owner-in-possession of the

property, in dispute, and the defendant be restrained by

way of permanent injunction not to make any interference in

the peaceful possession of the plaintiff and not to raise

any construction over it. It was also pleaded that an

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injunction in mandatory form may also be issued directing

the defendant to demolish the construction raised during

the pendency of the suit.

The defendant filed his written statement wherein

he denied the contents of the plaint. It was pleaded that

Mst. Bhoti did not execute any will dated 30.5.1975 in

favour of the plaintiff and the same was not got

registered. It was also pleaded that the property, in

dispute is an ancestral property of the defendant and he is

in possession of the same since the time immemorial,

therefore, it was prayed that the suit of the plaintiff be

dismissed.

The learned lower court, on the basis of the

pleadings of the parties, framed six issues. Issue no.1 is

as to whether Mst. Bhoti was the owner of the property, in

dispute, or not. Issue no.5 is whether the property, in

dispute, was ancestral property of the defendant. Issue

no.2 is in respect of execution of the will dated 30.5.1975

and whether the plaintiff is the owner of the disputed

property on the basis of the said will. Both the parties

led their evidence in support of their cases. The learned

lower court, v