ASHWANI KUMAR MISHRA, J. - (1.) THESE two connected petitions under Article 227 of the Constitution of India, arise out of orders passed in execution proceedings, and have been heard together, and with the consent of learned counsel for the parties are being disposed of by this common judgment.
(2.) DISPUTE herein relates to a residential property belonging to late Lallu Lal, who is survived by four sons, namely, Rajesh Kumar, Vijay Kumar and Santosh Kumar on one side, and Ashok Kumar and his wife Smt. Brijlesh Devi on the other side. Lallu lal died on 25.7.1997. Ashok Kumar and his wife set up a claim for the house property in question, on the basis of a will dated 25.10.1994, registered on 11.11.1994, whereas other three brothers namely Rajesh Kumar, Vijay Kumar and Santosh Kumar asserted their right over the house property, on the basis of an unregistered will dated 16.5.1997.
(3.) ASHOK Kumar and his wife filed original suit no.72 of 1998 for mandatory injunction, seeking possession of two rooms on ground floor, two rooms on first floor and four rooms on third floor, as per plaint map, of house no.K -46/83 and K -46/83, Hartirath, Varanasi, and for directing the defendants to remove their possession from the aforesaid accommodation in question, and also restrain them from interfering with plaintiff's possession over other part of house, which was already in plaintiff's possession. A declaration was also sought that alleged will dated 16.5.1997, set up by three brothers, was null and void. A second suit no.51 of 1998 was filed by three brothers for permanent injunction, restraining Ashok Kumar and his wife from evicting them, and also for a declaration that registered will dated 25.10.1994 was null and void. Both the suites were tried together and court of IInd Additional Civil Judge (S.D.), Varanasi, decreed original suit no.72 of 1998, vide judgment and decree dated 30.1.2009. Unregistered will dated 16.5.1997 was held to be null and void and a direction was issued to the three brothers, who were defendants therein, to remove their possession from the portion of house, as specified in para 17 -A of the plaint. The other suit, being original suit no.51 of 1998 was rejected. This decree was challenged by filing civil appeal no.21 of 2009 and 22 of 2009, under section 96 of the Code of Civil Procedure. These appeals were admitted on 3.3.2009, and parties were directed to maintain status -quo. Both the appeals, however, were dismissed by the court of Additional District Judge, Varanasi, on 17.9.2010. Second appeal no.1157 of 2010 and second appeal (defective) no.423 of 2010, filed before this court, against judgment and decree dated 17.9.2010, were dismissed on 9.1.2012, under Order XLI Rule 11 CPC. Matter was thereafter carried in appeal before the Apex Court in SLP, which too was dismissed on 2.11.2012. The decree passed by the trial court on 30.1.2009, therefore, has become final. Decree dated 30.1.2009 of the trial court reads as under: - Image 1;