- (1.)THIS is plaintiffs' second appeal who having succeeded in the trial Court, were nonsuited by the First Appellate Court.
(2.)IT is not in dispute that Nathusing was the owner of property situated in village Kanad. Ex. P-1 is the certified copy of a registered will dated 27-2-1933 executed by Nathusingh under which Nathusingh bequeathed some property to Munnalal and one house to Daryaosingh who was son from Mainabai, mistress of Nathusingh. To the south-west of the house bequeathed to Daryaosingh, is a Khandhar which is the subject-matter of this litigation. In this second appeal learned counsel for the respondents did not dispute that it is this Khandhar which is adjacent to the house of Daryaosingh in the direction of south-west and is mentioned in the copy of the will which indeed could not be disputed in view of the averment and factual foundation in the last two lines of clause 5 of para 3 of the certified copy. As such there is no dispute about either the description or identity of this Khandhar. It may be noted here that the present appellants are the legal representatives of Daryao Singh. It may also be noted that Nathusingh died in the year 1936.
(3.)THE case of the appellants in brief was that the aforesaid will was executed by Nathusingh and as such they are the owners of the Khandhar under the will of which the certified copy is Ex. P-1. Munnalal, the respondent (L. R. of deceased respondent No. 1 Keshavsingh) disputed the title of the appellants to the Khandhar as he wanted to raise walls on the Khandhar and put a roof on it and, therefore, applied to the Gram Panchayat in that connection. Munnalal thus dispossessed the appellants and refused to restore the possession despite notice dated 26-5-1971. Hence the appellants filed a suit claiming to be owners of the property and consequent possession and mesne profits in respect of the Khandhar.