HARSH KUMAR, J. - (1.) This is defendant's second appeal against the judgment and decree passed by Ist Additional Civil Judge, Gorakhpur on 22.4.1988 in Civil Appeal No.384 of 1986 "Ramesh Chandra Vs. Ram Niwas", arising out of Original Suit No.342 of 1974 "Ramesh Chandra Vs. Ram Niwas", by which allowing the Civil Appeal No.384 of 1986 and setting aside the judgment and decree passed by trial court, the suit of plaintiff for possession was decreed.
(2.) The brief facts relating to the present appeal are that plaintiff- respondent Ramesh Chandra filed civil suit against Ram Niwas on 28.2.1974 for a decree of ejectment and possession as well as for recovery of damages for use and occupation with the allegations, that the defendant was in possession of the house in suit as lecensee with the permission of Ram Kishun; that Ram Kishun had executed a will deed in favour of his wife Smt. Murta Devi, who died intestate on 15.11.1972 leaving behind her the only heir and legal representative, her husband Ram Kishun; that Ram Kishun executed a will deed in favour of plaintiff on 27.12.1972 and upon death of Ram Kishun on 5.11.1973, the plaintiff became exclusive owner of the house in suit; that the plaintiff terminated the license of defendant through valid notice dated 5.12.1973 which was served on him on 13.12.1973; that the defendant in his written statement denied the allegations made in plaint and contended that Smt. Murta Devi had two brothers Triveni and Satya Narain; that while plaintiff is the son of Triveni, the defendant is son of Satya Narain and so the plaintiff and defendant are real cousins to each other and both were nephews of their Bua Smt. Murta Devi; that Smt. Murta Devi executed a will deed on 8.11.1972 in favour of defendant Ram Niwas and upon her death on 15.11.1972 the house in suit devolved on the defendant on the basis of above will deed; that since Smt. Murta Devi had executed a will deed of house in suit in favour of Ram Niwas, her husband did not inherit any rights and title in the house in suit and so by the execution of alleged will deed by Ram Kishun in favour of plaintiff, which he did not get any rights or interests in the house in suit; that since Ram Kishun did not inherit and was not owner of the house in suit he was not competent to execute will deed in respect of the house and the same is null and void.
(3.) After framing the issues and recording the evidence of parties, the trial court IInd Additional Munsif, Gorakhpur came to the conclusion that Smt. Murta Devi had executed a will deed in favour of defendant and on her death, the defendant became owner of the house in suit and holding that the plaintiff is not owner of the house in suit on the basis of will deed dated 27.12.1972 dismissed the suit of plaintiff for possession. Feeling aggrieved, the plaintiff filed Civil Appeal No.384 of 1986 before District Judge, Gorakhpur and the 1 st Additional Civil Judge, Gorakhpur, allowed the same setting aside the judgment and decree passed by trial court regarding dismissal of suit and decreed the suit of plaintiff for the relief of ejectment of defendant and possession with costs. Feeling aggrieved, the defendant has preferred this appeal.;