- (1.) The defendant is the appellant against a judgment of affirmation.
(2.) The respondent filed the suit for eviction alleging that defendant was a monthly tenant in respect of suit premises under original landlady Smt.Charu Bala Dasi. It is further case that Charu Bala Dasi dedicated the suit property to the deity Sree Sree Gopal Gobinda Jiew Thakur and appointed plaintiff as Sebait of the deity by executing a will dated 23 rd January, 1975. Said will was duly probated in case No. O. S. 17 of 1976 and said judgment was affirmed by the Hon'ble Court in F. A. No.50 of 1980. The plaintiff was appointed as receiver of the estate of the deity by the Hon'ble High Court vide Order dated 21 st of April, 1980 in F. A. No.50 of 1980 and accordingly plaintiff filed the suit for eviction against defendant /tenant on the ground of default, violating the provisions of clauses (m) (o) (p) of Section 108 of the Transfer of Property Act after giving statutory notice.
(3.) The defendant contested said suit by filing written statement followed by additional written statement denying material allegations of the plaint. His specific case was that he was inducted as a tenant in the suit premises by original owner Smt. Charu Bala Dasi who executed deed of trust in respect of the suit property in favour of deity Sree Sree Gopal Gobinda Jiew Thakur in the year 1972 but said trust deed was revoked and cancelled by executing one registered deed in 1974. The plaintiff was appointed as sebait of said deity on the strength of one unregistered will dated 23 rd January, 1975 executed by Charu Bala Dasi, which was duly probated. However, later on it was found that Charu Bala Dasi executed her last will on 12 th of February, 1975 bequeathing the suit property in favour of her husband Lal Mohan Laha who later on executed one will in favour of the defendant in respect of the suit property. The defendant has filed a probate case being No.412 of 1996 relating to the last will of Charu Bala Dasi in favour of her husband Lal Mohan Lala and also filed probate case being No.8 of 1990 in respect of the will executed by Lal Mohan Laha in favour of the defendant. The defendant also filed one case being No.12 of 1998 for revocation of the grant of probate of will dated 23 rd of January, 1975 executed by Charu Bala in favour of plaintiff. In view of the subsequent will of Charu Bala in favour of her husband followed by the will executed by Lal Mohan in favour of defendant, the defendant became owner of the suit property and the suit was liable to be dismissed.;