M.C.Jain, J. - (1.) The background concerning the dispute may be related for proper appreciation. The present testamentary case has been filed by one Naveen Chand Seth for the grant of Letters of Administration in respect of the estate of Smt. Raj Kumari Seth, comprising of her half share in Nazul land plot No. 34, George Town, Allahabad. She was the mother of the petitioner and died on 11th February, 1999. Smt. Poonam Kakkar and Praveen Chand Seth have been shown as other next of kin of the deceased. Smt. Poonam Kakkar is her daughter whereas Praveen Chand is another step-brother of the petitioner Naveen Chand Seth. It is an admited fact that lease deed in respect of the plot in question had been executed on 23rd October, 1914 to be retrospectively effective from the year 1910 for a period of 90 years subject to renewal after every thirty years. The original lessee was Rai Keshari Narain Chaddha-predecessor of the parties. He left behind him his son Triyugi Narain Chaddha. After the death of Triyugi Narain Chaddha, lease rights had been inherited by his two sons Satjugi Narain Chaddha and Triloki Narain Chaddha and lease was renewed in their names on 17/9/1946 to be retrospectively effective from 1940. The contest has been offered in these proceedings by Tej Narain" Chaddha and Deepak Narain Chaddha. Tej Narain Chaddha is the son of Triloki Narain Chaddha (deceased) and Deepak Narain Chaddha is the own son of Tej Narain Chaddha. As mentioned above, the second renewal of the lease was made for a period of thirty years effective from 1/1/1940 on 17/9/1976 in the names of Satjugi Narain Chaddha and Triloki Narain Chaddha. Satjugi Narain Chaddha-father of Smt. Rajkumari Seth expired on 1.1.1962 and it is urged by the petitioner that the right, title and interest owned and possessed by him devolved upon his sole issue, i.e., daughter Smt, Raj Kumari Seth as his own wife had predeceased him. As per the petitioner, Tej Narain Chaddha and Deepak Narain Chaddha who are claiming through their father and grandfather are entitled only to half share in the leasehold property but they are trying to usurp the entire property including the share of the deceased Smt. Raj Kumari Seth which actually devolved upon her two sons and daughter. The said Tej Narain Chaddha and Deepak Narain Chaddha are trying to create right in their favour by applying for conversion of the property in dispute from leasehold to freehold and they are also trying to transfer the same as also to change the nature of the land, representing themselves to be the exclusive owners and successors-in-interest of the entire property. Their such act is said to have necessitated the filing of the present petition.
(2.) Simultaneously, the petitioner made an application A-3/l-2.praying for passing appropriate order for protection of the property in respect of which Letters of Administration have been sought. This Court issued notice and in the meanwhile, directed the parties to maintin status quo in respect of the disputed property -Nazul plot No. 34, George Town, Allahabad, regarding its nature and present condition. Thereagainst, Tej Narain Chaddha and his son Deepak Narain Chaddha have made application A-5 with affidavit A-6 to recall the said order. Their contention may be summarised thus : The petitioner has concealed the material facts and has made false averments to obtain ex parte interim order which amounts to absue of the process of the Court. On the expiry of the second renewal of the lease in 1976, a fresh lease deed was executed between the State Government on the one hand and Tej Narain Chaddha and his father Triloki Narain Chaddha on the other. This fresh lease deed created rights in their favour as lessee of the Nazul Property No. 34 in question. This fact has conveniently been concealed by the petitioner. Triloki Narain Chaddha being the father of Tej Narain Chaddha and Ganesh Kumari Anand changed the mode of devolution by testamentary disposition in favour of his grand son Deepak Narain Chaddha in the year 1983 by executing a Will dated 3.7.1983 (Annexure 2 to the affidavit A-6). Writ Petition No. 8585 of 2000, Tej Narain Chaddha & Anr. v. State of U.P. & Ors., is also peding between the parties in which the petitioner Naveen Chand Chaddha is respondent No. 3 and an interim order dated 22.2.2000 has also been passed. The right of Tej Narain Chaddha was in his own capacity and not through his father Triloki Narain Chaddha. The Government Order erroneously holding half share of Tej Narain Chaddha and Deepak Narain Chaddha has been stayed by this Court in writ petition referred to above. So far as Smt. Raj Kumri Seth is concerned, she does not have any right to the property in dispute. There is nothing to establish that she had ever been in possession of the same. So far as Naveen Chand Seth and Praveen Chand Seth are concerned, they are residing in one of the houes, i.e. house No. 34/12, (approximate area about 250 sq. yards only). So far as this portion of the property is concerned, their posession is not disputed. Nor the same has ever been interfered with in any manner. No objection by Smt. Raj Kumari Seth or her heirs was ever raised after the second renewal of the lease in favour of Tej Narain Chaddha and Triloki Narain Chaddha.
(3.) Counter and rejoinder affidavits have been exhanged between the parties and I have heard Mr. Navin Sinha learned Counsel for the petitioner as also Mr. Manish Goel reprsenting Tej Narain Chaddha and Deepak Narain Chaddha who have made appliction A-5 for recall of the restraint order dated 21.4.2000. It appears that as per these persons, Satjugi Narain Chaddha executed a Will dated 19.4.1957 bequeathing his right in the Nazul land in question in favour of Tej Narain Chaddha (son of Triloki Narain Chaddha) and in respect pf his house constructed on the Nazul land in favour of his wife Smt. Shakuntla Devi and daughter Smt. Raj Kumari Seth. Triloki Narain Chaddha executed a Will in respect of lease rights in favour of his grandson Deepak Narain Chaddha son of Tej Narain Chaddha on 3.7.1983. It seems to be so that it was on the basis of the Will executed by Satjugi Narain Chaddha in favour of Tej Narain Chaddha on 19.4.1957 that second renewal of lease was made in favour of Triloki Narain Chaddha (who was one of the lessees with Satjugi Narain Chaddha in the first renewal of the lease deed executed in 1946) and in favour of Tej Narain Chaddha.;