VINEET KOTHARI,J. - (1.) This unfortunate fight between the two real brothers has been brought up before this Court by the appellant/plaintiff, Inder Singh S/o late Sh. Loonsingh Rajpurohit, against his younger brother, namely, Bheem Singh S/o late Sh. Loonsingh, in respect of suit property, a plot of land ad-measuring 21' x 54', situated in Village-Dhariya, Tehsil-Desuri, upon which the appellant/plaintiff constructed two rooms, one Hall, Chowk, Kitchen, store, bathroom, varanda, etc. after seeking requisite permission from the concerned Gram Panchayat.
(2.) The appellant/plaintiff, Inder Singh, was in service of Jodhpur Central Cooperative Bank, and undisputedly, the Patta No. 49/77 dated 19.06.1980 (Exhibit-2) was issued in respect of said plot of land by the concerned Gram Panchayat-Dhariya, in the name of plaintiff, Inder Singh. Since, the plaintiff/appellant was serving at Jodhpur, he gave permissive possession of the part of the said house to his younger brother, Bheem Singh, on 01.08.1996 for a period of two years. The father of the parties, late Sh. Loon Singh, expired on 27.03.2002 but before his death, he executed a Will on 17.12.1989 (Exhibit-1) in favour of his three sons, viz. two being parties to the present suit and other one Sh. Dalpat Singh. However, said brother, Dalpat Singh, having no lis in the present case, was not a party to the present suit, which was filed by the appellant/plaintiff for seeking possession of the suit house in question from the defendant, Bheem Singh and the mesne profits.
(3.) The learned trial court, however, vide the impugned judgment and decree dated 01.05.2003 rejected the suit filed by the plaintiff basically on two grounds, namely, that the plaintiff has failed to prove the Will (Exhibit-11) dated 17.12.1989 of the father, late Sh. Loon Singh, and also that the neighbourhood of the Patta (Exhibit-2) dated 19.06.1980 and as given in the Will and later on in the Notice revoking the licence of the defendant was different. The relevant portion of the trial court's order is quoted herein below for ready reference: - ...[VERNACULAR TEXT OMITTED]... AIR 1974 Raj. Page 73 Kusum Chand & Ors. v. Kanhaiyalal & Ors. (B). C.P.C. Order 6, Rule 2 - Variance between pleading and proof - Effect - A variation between pleading and proof causes surprise and confusion and therefore has been always looked upon with considerable disfavour. ...[VERNACULAR TEXT OMITTED]...;