D.C. Srivastava, J. - (1.) THIS is Defendant's second appeal.
(2.) PLAINTIFF -Respondent, Ram Sumer Misra, filed a suit against Defendant -Appellant (his own real brother) for his eviction from a portion of the disputed premises No. 124/B/689 Govind Nagar, Kanpur. and for recovery of damages and pendente lite and future mesne -profits. The allegations in the plaint were that Deen Dayal Misra, father of the Plaintiff, was absolute owner of the above house. He had four sons, namely, Ram Sumer Misra, Plaintiff, Ram Bishal Misra, Defendant, Ram Sewak and Ram Ashrey. Deen Dayal Misra also left his widow. Deen Dayal Misra executed his last will on 7.6.1966 which was registered on 8.6.1966. He expired on 5.3.1980. The Plaintiff thus became absolute owner of the house. The Defendant was occupying a portion of the said house from his father as licensee. His licence initially stood terminated on the death of Deen Dayal Misra. Thereafter the Appellant occupied the said portion as licensee of the Plaintiff -Respondent. The Appellant promised to vacate the portion but ultimately resiled from the same. The licence of the Defendant was revoked through a notice dated 26.4.1981 which was served on 30.4.1981. Again the premises was not vacated, hence, suit for eviction and damages etc. was filed. The suit was resisted on the ground that the will in question is a forged document. It was never executed by Deen Dayal Misra nor the Plaintiff is absolute owner of the house. It was pleaded that the Defendant -Appellant occupied the disputed portion from the time of his father and he is one of the co -owners of the house along with the Plaintiff -Respondent. It was also pleaded that the suit is not maintainable because in the garb of ejectment the Plaintiff wants declaration of his title.
(3.) THE trial court found that the will was properly executed by Deen Dayal Misra. Due execution and attestation and registration of the will was upheld by the trial court. The Plaintiffs case of licence was also accepted and finding that the licence was revoked the suit for eviction and recovery of damages and mesne -profits was decreed.;