POONAM SRIVASTAVA, J. - (1.) HEARD Ms. Tulika Prakash, learned counsel for the defendants/appellants and Sri V.B. Khare, learned counsel for the plaintiff/respondents.
(2.) THE second appeal arises out of the original suit No. 324 of 1972 instituted by the plaintiff/respondent claiming 2/3rd share in Haveli and Ahata in village Muqimpur, Pargana Baran, District Bulandshahar. The suit was dismissed with cost by the Civil Judge, Butendshahar, vide judgment and order dated 25.1.1975. Against which the plaintiff preferred a civil appeal No. 80 of 1975. The appeal was allowed and the suit was decreed by 1st Additional District and Sessions Judge, Bulandshahar, vide judgment and decree dated 18.11.1977. The instant appeal was admitted on the following substantial questions of law, which are quoted hereinbelow: (1) Whether the lower appellate Court having recorded a categorical finding on the basis of all oral and documentary evidence on record to the effect that the defendant -appellant was in sole possession of the property in suit to the exclusion of the plaintiff -respondent since 8.5.1958 it has grossly -erred in holding on the basis of mere presumptions that the possession must be deemed to have been interrupted during the pendency of the earlier proceedings under Section 145, Code of Criminal Procedure? (2) Whether there being a categorical evidence to the effect that in spite of the order of attachment passed in the aforesaid proceedings under Section 145, Cr.P.C. the defendant -appellants actually continued to retain possession, the lower appellate Court has grossly erred that during that period his possession must be deemed to have been interrupted? (3) Whether the lower appellate Court has grossly erred in basing his conclusions upon the inferences drawn out of earlier criminal proceedings between the parties to the present suit and not upon the evidence produced in the case which was actually before him."
(3.) ADMITTED case between the parties is that the plaintiff -respondent is widow of late Rai Bahadur Karan Singh and step mother of the defendant -appellant No. 1 Rajendra Singh and other defendants are sons of the defendant No. 1. Basis of the plaintiffs claim was that late Rai Bahadur Karan Singh, who was the owner of Haveli and Ahata transferred both in favour of his second wife (step mother of defendant No. 1) by means of the registered Will dated 4.5.1957 and thereafter he died in the month of January, 1958. The plaintiff got ownership and possession over the property in suit.;