- (1.) Plaintiffs-Appellants, who are two in number, have filed original suit no.355 of 1986 for a declaration that the plaintiffs-appellants be declared co-owner of House No.24, Sammelan Marg, Allahabad. A further prayer was made for ejecting the defendant no.2 from the portion of the premises in dispute, as described in Schedule 'A' and 'B' to the plaint, alongwith damages for use and occupation of the premises in occupation of the defendants.
(2.) It is not in dispute that house in question was owned and constructed by one Late Satguru Prasad. Satguru Prasad was survived by two sons namely Durga Prasad and Purshottam Lal. Purshottam Lal is one of the plaintiffs in the suit. Durga Prasad, elder son of Satguru Prasad, was married to one Smt. Kamla Devi, who is stated to have pre-deceased Satguru Prasad in the year 1940. Satguru Prasad also is stated to have died in the year 1954. According to the case setup by the plaintiff no.1, he was born out of the wedlock of Durga Prasad, elder son of Satguru Prasad, with Smt. Kamla Devi, and when he was born, Satguru Prasad was alive. It is stated that in such factual scenario, plaintiff no.1 became a coparcener of the joint Hindu family. According to the plaintiffs' case, upon death of Satguru Prasad, the house in question devolved upon plaintiffs, and they became owner of the house having 1/2 shares each, respectively.
(3.) Suit was contested by the two defendants to the suit. It is not disputed that defendant no.2 Ganga Prasad Yadav was the tenant in a portion of the premises since long. Durga Prasad is stated to have died on 5.4.1985. It is stated by the defendant no.1 Smt. Panna Devi that a registered will was executed by Durga Prasad on 21.12.1984 in her favour. According to the defendants' case, Durga Prasad died on 5.4.1985, after having executed a registered will in favour of Smt. Panna Devi, who is claiming to be her wife. It has further come on record that a registered agreement to sell has been executed by Smt. Panna Devi in favour of Ganga Prasad Yadav within five days of the death of Durga Prasad. According to defendant no.1, half share of house belonging to Durga Prasad was already partitioned during lifetime of Satguru Prasad and such demarcated portion, falling within the share of Durga Prasad, devolved upon her, by virtue of registered will. According to the defendants, pursuant to the partition, the shares of Durga Prasad and plaintiff no.2 had been clearly demarcated and respective portions were separately recorded in the records of Nagar Mahapalika Allahabad.;