Shishir Kumar, J. - (1.) HEARD learned Counsel for the Appellant.
(2.) THIS is Defendant's second appeal arising out of suit filed by the Plaintiff Respondent for injunction restraining the Defendant from interfering in the house No. 2116 (old) new 17/96. It has been pleaded that Ninua Ram was the owner of the said house, having four sons. Ram Lal one of the son, died in 1987 and Sunder Lal another son, died in 1972. As aforementioned sons were unmarried, therefore, they have not left any heirs and legal representative. In life time Ninua Ram has executed a will deed in favour of his wife on 24.08.1975. Smt. Ganga Devi was mother of the Plaintiff, therefore, on the basis of will, she has been devolved all the rights in the said property. After the death of husband of Smt. Ganga Devi, mother of the Plaintiff was enjoying the fruits of the property. The Defendant, who is the real brother of the Plaintiff, Smt. Ganga Devi has purchased a plot of 100 square meter in Billochpura, Tajganj, Agra in the name of Defendant Financial assistance was also given provided by the mother and Plaintiff to construct the house in the year 1987. The number of said house was 17/113 in the name of Defendant. Further allegation was made in the plaint that Smt. Ganga Devi in her life time has executed registered will deed on 21.08.1990 in favour of Plaintiff and the house in dispute was given in his favour and it was registered from the office of Registrar. After the death of Smt Ganga Devi, Plaintiff became the owner of the property on the basis of will dated 21.08.1990. During the last rights of the mother Defendant stay for some period in the house in dispute, on the ground that his house situated at Billochpura, Tajganj, Agra was under construction and subsequently, when Plaintiff requested to vacate the house, he refused. Then notice was given on 09.08.1996 but in spite of the fact, it has not been vacated then suit was filed.
(3.) DEFENDANT filed written statement and denied the claim made in the plaint stating therein that the property in dispute belongs to one Allay and it is undivided ancestral property and therefore, any will executed by any person in favour of anybody will not accrue any exclusive right and legally the Defendant is having a share 1/2 in the house No. 17/96. The Plaintiff only want to grab the property exclusively has filed the present suit.;