JUDGEMENT 1. V .K. Sharma, J. . These two appeals arising out of a single judgment and decree dated 16.09.2010, rendered by the learned District Judge, Chamba, H.P., in Civil Appeal No. 7 of 2009, Smt. Harjeet Kaur and others vs. Smt. Manju Munick and others and Civil Appeal No. 8 of 2009, Prithvi Jit Singh vs. Smt. Manju Munick and others, reversing the judgment and decree dated 31.3.2009, passed by the learned Civil Judge (Jr. Division), Dalhousie, District Chamba, H.P., in Civil Suit No. 80 of 2003, Smt. Harjeet Kaur and others vs. Smt. Manju Munick and others and thereby decreeing the suit for grant of a decree of declaration with consequential relief of perpetual prohibitory injunction, filed by the plaintiffs (respondents No. 1 to 4 in RSA No. 460 of 2010/respondents No. 2 to 5 in RSA No. 461 of 2010 and respondent No. 5 in RSA No. 460 of 2010/respondent No.1 in RSA No. 461 of 2010, who was later on transposed as defendant No.4) against the original defendant, late Shri Ranjit Singh (predecessor-in-interest of the appellants in each appeal/defendants No. 1 to 3) are being disposed of by this common judgment. 2. FOR the sake of convenience the parties shall here-in-after be referred to as the plaintiffs and original defendant/defendants No. 1, 2, 3 and 4, respectively. Following is the admitted pedigree table qua the parties:- Kehar Singh Kuldeep Kaur (Wife) (died in 1974) Testarix (died on 8.3.1998) Prithvijit Ranjeet Harjeet Jasjeet Kaur Nirmaljeet Neena Singh Singh Kaur S-1 S-2 D-1 D-2 D-3 D-4 (def. No.4) (original sole (plf No.1) (plf No.2) (plf No.3) (plf No.4) Defendant) Smt. Manju Karan Mamick Reema Singh Mamick Wife S D (def. No.1) (def. No.2) (def. No.3.) 3. BRIEF facts of the case are as follows. 4. THE dispute between the parties concerns the house said to be popularly known as 'Belmont', situate at Moti Tibba, Dalhouse, District Chamba, H.P., along with a cottage consisting of six rooms, besides servant quarters and vacant land, comprised in khata No. 144, khasra Nos. 808, 810, 811, 814, 815, 817,818, 819, 820 and 821, kita 10, khata No. 145, khasra No. 816 and khata No. 146 khasra Nos. 812 and 813, as per jamabandi for the year 1997-98, Hadbasat No. 346/3, Tehsil Dalhousie, District Chamba, H.P. (suit property). 808, 810, 811, 814, 815, 817,818, 819, 820 and 821, kita 10, khata No. 145, khasra No. 816 and khata No. 146 khasra Nos. 812 and 813, as per jamabandi for the year 1997-98, Hadbasat No. 346/3, Tehsil Dalhousie, District Chamba, H.P. (suit property). The suit was filed by plaintiff No.1 for herself and as General Power of Attorney on behalf of plaintiffs No. 3 to 5 on the averments that the parties to the suit are the sons and daughters of late Smt. Kuldeep Kaur (testarix), wife of late Sh. Kehar Singh, who was owner in possession of the suit property fully detailed and described here-in-above. According to them, the suit property was purchased by the grand father of the parties to the suit, late Sh. Kharak Singh, before partition of the country, prior to the year 1945. It is stated that the testatrix became absolute owner of the property vide mutation No. 776, dated 17.9.1973, incorporated in jamabandi for the year 1967-68. 5. IT was averred that the revenue entries showing the original defendant to be lessee as well as owner in possession of the suit property are factually wrong and incorrect and not binding on the rights of the plaintiffs, as he could not be tenant and owner of the same property at the same time. The testatrix never executed any lease deed in favour of the original defendant for a period of 99 years. 6. IT was further averred that after the death of the testatrix in the year 1998, a letter was written to the Tehsildar Dalhousie, by defendant No.4 Prithvijit Singh, being one of the legal heirs of the deceased, in which the death certificate and copy of the will dated 19.4.1992 (in fact 16.4.1992), were also enclosed. The letter was duly received in the office of the Tehsildar on 16.6.1998. However, despite receipt of the death certificate and the will, no mutation was effected on the basis of the said will nor the plaintiffs or defendant No.4 were ever summoned by the revenue authorities at any point of time. It is stated that the plaintiffs are not permanent residents of Dalhousie, but keep on coming there during holidays and otherwise. The original defendant got sanctioned mutation No. 135 on 24.6.1999 on the basis of an alleged will. It is stated that the plaintiffs are not permanent residents of Dalhousie, but keep on coming there during holidays and otherwise. The original defendant got sanctioned mutation No. 135 on 24.6.1999 on the basis of an alleged will. This mutation was done without intimating or informing the plaintiffs, especially in view of letter dated 16.6.1998, duly received in the office of the Tehsildar Dalhousie. A public notice dated 8.6.1998, was also got published through an Advocate in a newspaper, mentioning about the will and also that any person purchasing the suit property will be doing so at his/her own risk, cost and responsibility. The said letter and will dated 19.4.1992 (in fact 16.4.1992) were completely overlooked/ignored by the revenue authorities for the reasons best known to them. According to the plaintiffs, the original defendant in a clandestine manner got entered/sanctioned the aforesaid mutation No. 135, dated 24.6.1999, in his favour at the back of the plaintiffs and as such the same is null and void and illegal, being totally violative of the basic principles of natural justice and therefore did not confer any right on the original defendant regarding the suit property and the same is not binding on the plaintiffs. According to the plaintiffs they came to know of the above mutation only in the month of September, 2003, when they went to the spot and wanted to stay in the suit property for sometime. However, the plaintiffs were not allowed by the original defendant to enter the property saying that the same belongs to him alone and the plaintiffs have no right over the same and he further gave out that he had already got recorded mutation in his favour and that the plaintiffs should not dare to come next time, as he was going to dispose of the property to somebody else and negotiations for the same were already going on. According to the plaintiffs, they asked the original defendant to get the aforesaid mutation cancelled and desist from claiming any exclusive right over the suit property and to admit their claim, but he finally refused to accede to their request in the third week of August, 2003 and instead repeated threat to alienate the suit property, compelling the plaintiffs to file the suit. It is stated that cause of action accrued to the plaintiffs against the original defendant firstly at the time of the death of the testatrix and thereafter in September, 2003. 7. THE suit was contested by defendants No. 1 and 3 on preliminary objections regarding maintainability, estoppel, suppression of material fact of filing of previous suit before the learned Civil Judge (Senior Division) Karnal, resjudicata and valuation. Preliminary objection No.4 regarding resjudicata has been framed as under:- "That plaintiff No.2 Prithvi Jit Singh filed a suit against late Sh. Ranjit Singh before the Learned Civil Judge (Senior Division) Karnal, which was registered as Case No. 201/1998 on 01.08.1998 regarding the validity of will dated 16.04.1992 regarding the property situated at Karnal. The said suit have been compromised between the parties, the plaintiff except plaintiff No.2 were party to the suit and as per the compromise all the plaintiffs in the present suit admitted the validity of wills dated 12.12.1994 and 31.08.1997 executed by late Smt. Kuldeep Kaur and suit of the plaintiff was dismissed as withdrawn. As the matter have been already decided by the competent court. The present suit is barred by Principals of resjudicata." 8. ON merits, it was admitted that the suit property was owned by the testatrix, mother of the parties. However, it was alleged that she had leased the entire suit property in favour of the original defendant late Sh. Ranjit Singh for 99 years from 07.04.1994 to 06.04.2093 vide registered lease deed No. 63, dated 07.04.1994 and mutation thereof was attested on 07.06.1995. It was further pleaded that the testatrix had cancelled the will dated 19.4.1992 (in fact 16.4.1992) and executed a registered will in favour of late Sh. Ranjit Singh (original defendant) on 12.12.1994, regarding the suit property as Vasika No. 121/3, dated 12.12.1994. The Assistant Collector 2nd Grade Dalhousie sent notice to the plaintiffs, but they failed to appear before him, therefore, the mutation was attested as per will dated 12.12.1994. The plaintiffs have already admitted the validity of the will dated 12.12.1994 and admitted the same to be the last will of the deceased. The plaintiffs were well aware regarding the will executed by their mother on 12.12.1994, in favour of late Shri Ranjit Singh (original defendant). However, the possession of the entire premises is with defendants No. 1 to 3 as owners. The plaintiffs were well aware regarding the will executed by their mother on 12.12.1994, in favour of late Shri Ranjit Singh (original defendant). However, the possession of the entire premises is with defendants No. 1 to 3 as owners. The plaintiffs or defendant No.4 have no right to demand cancellation of the mutation. Defendant No.4 though has raised preliminary objections regarding maintainability, mis-joinder and non-joinder of necessary parties, valuation and the plaintiffs not having approached the court with clean hands, yet has admitted almost the entire case of the plaintiffs on merits and has stated that the suit may be decreed as per the pious and holographic will dated 16.4.1992, being last and valid will left by the testatrix and the mutation sanctioned in favour of Sh. Ranjit Singh (original defendant/predecessor-in-interest of defendants No.1 to 3) may be declared null and void and not binding on the rights of the answering defendant. It is stated that he had revoked the General Power of Attorney executed in favour of plaintiff No.1 on 7.8.2006. 9. ON the above pleadings, the following issues were settled by the learned trial court:- "1. Whether the plaintiffs are entitled for declaration as prayed for ?OPP 2. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction as prayed for ? OPP. 3. Whether the suit of the plaintiffs is not maintainable in the present form ? OPD. 4. Whether the plaintiffs are estopped by their own act and conduct to file the present suit ? OPD. 5. Whether the suit is not properly valued for the purpose of jurisdiction and court fee ? OPD. 6. Whether the suit is barred by the principle of resjudicata ? OPD. 7. Whether the suit of the plaintiffs is bad for non-joinder and mis-joinder of necessary parties ? OPD. 8. Whether the plaintiffs have not come to the Court with clean hands ? OPD. 9. Relief." 10. AFTER the parties led evidence and were heard by the learned trial court, the suit came to be dismissed holding issue Nos. 3, 4 and 8 in affirmative and the remaining issues in negative. OPD. 8. Whether the plaintiffs have not come to the Court with clean hands ? OPD. 9. Relief." 10. AFTER the parties led evidence and were heard by the learned trial court, the suit came to be dismissed holding issue Nos. 3, 4 and 8 in affirmative and the remaining issues in negative. It shall be appropriate to notice at this state that two witnesses, namely Kishori Lal, Record Keeper, Tehsil Office, Dalhousie, who had not brought the summoned record, as according to him the same could not be traced, whose further examination was deferred on 8.7.2008, but was not examined thereafter and Karamveer Singh, Registration Clerk, Sub Registrar Office, Karnal, each have been numbered as DW-3. Being aggrieved, two appeals were filed in the court of the learned District Judge, one by the plaintiffs and the other by defendant No.4, which were accepted and the suit was decreed, as already noticed. 11. I have heard the learned counsel for the parties and gone through the records. 12. THE appeals have been admitted for hearing on the following identical substantial questions of law Nos. I, III, VIII, X and XVI, except that in question No. I in the respective appeals respondent numbers pertain to the particular appeal:- "I. Whether the provisions of Order 23, Rule 3 CPC have been misinterpreted by the learned lower appellate court by holding that since the Compromise Deed (Ex.D-4) is not signed by respondent Nos. 1 to 4 except respondent No.5 and the counsel for respondents Nos. 1 to 4 has signed on their behalf, therefore, the same is not binding upon them in view of the law laid down by the Hon'ble Supreme Court in Vyram Pestonji Gariwala Vs. Union Bank of India others, 1992 CCC 73 (SC) and Pushpa Devi Bhagat (dead) through Lr Sadhna Rai (Smt.) Vs. Rajinder Singh and others, (2006) 5 SCC 566 , wherein it has been held by the Hon'ble Supreme Court that the words "by the parties" also means their counsel or their agents? III. Whether the present suit is also time barred especially when the respondents had the knowledge of the Regd. Will dated 12.12.1994 in the year 1998 and the present suit has been filed thereafter in October, 2003 ? VIII. III. Whether the present suit is also time barred especially when the respondents had the knowledge of the Regd. Will dated 12.12.1994 in the year 1998 and the present suit has been filed thereafter in October, 2003 ? VIII. Whether the unregistered Will dated 16.4.1992 (Ex.PW-2/A) was admissible in evidence especially when the original is not on record and neither the existence nor its loss has been proved on record to fall within the parameters of Section 65(c) of the Indian Evidence act, 1872 to fulfill the parameters of secondary evidence? X. Whether the Regd. Will dated 12.12.1994 (Ex.DW- 5/C) in favour of the father of the appellants has been proved as per the Parameters of Section 68 of the Evidence Act by examining the attesting witness and the Registration Clerk as DW-5 and DW-3 respectively ? XVI. Whether the suit was not maintainable as relief of possession has not been claimed in the suit and on the other hand, the possession of the appellants stands admitted in view of the law laid down by this Hon'ble Court and the Hon'ble Supreme Court in Sita Ram Vs. Hari Krishan, 2000 (1) CCC 704 (H.P), Ram Saran and another Vs. Smt. Ganga Devi, AIR 1972 SC 2685 and Vinay Krishna Vs. Keshav Chandra and another, AIR 1993 SC 957 ?" Reliance has been placed on behalf of the parties on a plethora of case law, which has been taken due note of and shall be referred to wherever necessary. 13. FIRST of all two identical application(s) being CMP No. 1055 of 2011 in RSA No. 460 of 2010 and CMP No. 1056 of 2011 in RSA No. 461 of 2010, moved on behalf of defendant No.4 (respondent No. 5/1 in the respective appeals), under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 (in short 'CPC'), seeking permission to produce in additional evidence certified copy of will dated 12.12.1994, received from the office of the Sub Registrar, Karnal and prove the same by summoning the original will from the said office, are required to be disposed of. I would proceed to undertake the exercise. 14. I would proceed to undertake the exercise. 14. THE will dated 12.12.1994, Ex.DW-5/C sought to be proved in additional evidence has been propounded by the original defendant (predecessor-in-interest of defendants No. 1 to 3), who have already produced and proved the same in the learned trial court as Ex.DW-5/C. It is averred that there are marked variations between the will dated 12.12.1994 Ex.DW-5/C produced by the plaintiffs and attested copy thereof obtained by defendant No.1 from the office of the Sub Registrar, Karnal, which has been annexed with the application(s) for additional evidence. To illustrate, whereas in will Ex.DW-5/C, seal of the Sub Registrar is affixed on each page on front side as well as reverse side, no such seal finds place in the attested copy of the said will obtained by defendant No.1 from the office of the Sub Registrar, Karnal. Furthermore, signatures of the deceased on will Ex.DW-5/C and its attested copy on each page are differently placed. Still further certificate appended by Dr. G.D. Sharma, who is said to have examined the deceased at the time of execution of will Ex.DW-5/C and found her to be physically and mentally fit differs on the original will and attested copy thereof. The prayer for additional evidence is opposed on behalf of defendants No. 1 to 3 on the ground that besides DW-5 Shri Gagan Mohan Chhiber, who is a marginal witness to will Ex.DW- 5/C, execution thereof has also been proved by DW-3 Shri Karamveer Singh, Registration Clerk, office of the Sub Registrar, Karnal and as such the prayer for additional evidence is not legally tenable. 15. IN a way, the prayer of defendant No.4 for leading additional evidence is virtually supported by the plaintiffs. 16. PRODUCTION of additional evidence in appellate court is governed by Rule 27 of Order 41, which reads as under:- "27. 15. IN a way, the prayer of defendant No.4 for leading additional evidence is virtually supported by the plaintiffs. 16. PRODUCTION of additional evidence in appellate court is governed by Rule 27 of Order 41, which reads as under:- "27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." In the facts and circumstances of the present case, none of the conditions (a), (aa) and (b) mentioned in sub rule (1) of Rule 27 of Order 41 is attracted. The prayer for additional evidence has been made for the first time in this court and as such clause (a) does not apply. Clause (aa) also does not apply as it is not shown that either the evidence sought to be led now was not within the knowledge of defendant No.4 or could not be produced by him earlier despite exercise of due diligence. As far as the objection with regard to non existence of seal of the Sub Registrar on the attested copy of will (Annexure MA-2) is concerned, DW-3 Shri Karamveer Singh has clarified this aspect in cross examination that seal is not affixed on the office copy. It is a matter of common practice that for registration of a will duplicate copies are required in the office of the Sub Registrar. Thus, difference in placement of signatures on each copy may occur in normal course. The same analogy applies to the certificate(s) appended by Dr. It is a matter of common practice that for registration of a will duplicate copies are required in the office of the Sub Registrar. Thus, difference in placement of signatures on each copy may occur in normal course. The same analogy applies to the certificate(s) appended by Dr. G.D. Sharma on will Ex.DW-5/C and duplicate copy whereof is Annexure MA-2. In such circumstances clause (b) is also not attracted. 17. IN view of the above, the prayer on behalf of defendant No.4 for grant of permission to lead additional evidence is declined and the application(s) are dismissed. 18. BEFORE the substantial questions of law are taken up for discussion and decision, it shall be appropriate to notice certain background facts. The testatrix was owning properties at Dalhousie (Himachal Pradesh) and Karnal (Haryana). Whereas the will dated 16.4.1992, Ex.PW-2/B has been propounded by the plaintiff, will dated 12.12.1994 Ex.DW-5/C and codicil dated 3.8.1997, mark Z-1 have been set up by defendants No. 1 to 3. The suit out of which the present appeal has arisen was filed by the plaintiffs and defendant No.4 Prithvijit Singh in respect of the property left by the testatrix at Dalhousie (Himachal Pradesh). Another Civil Suit being case No. 201 of 1998, titled Prithvijit Singh vs. Ranjeet Singh and others was filed by defendant No.4 against the original defendant and the plaintiffs in the court of Civil Judge, Karnal (Haryana), claiming ownership and possession of half share out of house No. 55, situated in Model Town, Karnal, on the basis of will dated 16.4.1992, Ex.PW-2/B, which is stated to have been dismissed as withdrawn vide consent order dated 30.10.1999, Ex.D-10/Ex.D4-1/E, pursuant to compromise dated 30.10.1999, Ex.D-4 said to have been arrived at between the parties in that suit. Another suit being Civil Suit No. 279 of 2007 (copy of plaint Ex.PA/9), has also been filed by plaintiffs No. 1, 2 and 4 against the defendants, in which plaintiff No. 3 is proforma defendant No.5, in the court of the learned Civil Judge (Jr. Division), Karnal (Haryana), subject matter whereof is both the properties of Dalhousie (Himachal Pradesh) and Karnal (Haryana). However, this being a subsequent suit to the suit out of which the present appeal has arisen, is stated to have been stayed by the said court. Now I shall take up the substantial questions of law for discussion and decision one by one. However, this being a subsequent suit to the suit out of which the present appeal has arisen, is stated to have been stayed by the said court. Now I shall take up the substantial questions of law for discussion and decision one by one. Substantial Question of Law No. I Whether the provisions of Order 23, Rule 3 CPC have been misinterpreted by the learned lower appellate court by holding that since the Compromise Deed (Ex.D-4) is not signed by respondent Nos. 1 to 4 except respondent No.5 and the counsel for respondents Nos. 1 to 4 has signed on their behalf, therefore, the same is not binding upon them in view of the law laid down by the Hon'ble Supreme Court in Vyram Pestonji Gariwala Vs. Union Bank of India others, 1992 CCC 73 (SC) and Pushpa Devi Bhagat (dead) through Lr Sadhna Rai (Smt.) Vs. Rajinder Singh and others, (2006) 5 SCC 566 , wherein it has been held by the Hon'ble Supreme Court that the words "by the parties" also means their counsel or their agents? 19. ORDER 23 Rule 3 CPC reads as under:- "3. Compromise of suit.- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, (in writing and signed by the parties) or where the defendant satisfies the plaintiff in respect of the whole of any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the ;same as the subject-matter of the suit]: [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.] [Explanation.- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.] 20. AS regards counsel's authority to sign a compromise deed on behalf of his client(s), defendants No. 1 to 3 have relied upon the following authorities:- 1. Byram Pestonji Gariwala vs. Union Bank of India and Others, 1992 Civil Court Cases 73 (SC) : 1992 (1) Supreme Court Cases 31; 2. Pushpa Devi Bhagat (dead) through L.R. Sadhna Rai (SMT.) Vs. Rajiinder Singh and Others, 2006 (5) Supreme Court Cases 566, (Head Note E, paras 23 to 25); and 3. Bakshi Dev Raj (2) and another vs. Sudheer Kumar, (2011) 8 Supreme Court Cases 679. 4. Sneh Gupta v. Devi Sarup and others, (2009) 6 Supreme Court Cases 194 Per contra the plaintiffs and defendant No.4 have placed reliance upon Gurpreet Singh vs. Chatur Bhuj Goel, AIR 1988 Supreme Court Cases 400 and D.P. Chadha vs. Triugi Narayan Mishra and others, (2001) 2 Supreme Court Cases 221 21. GURPREET Singh vs. Chatur Bhuj Goel, (supra) has also been referred in the subsequent judgments in Re: Pushpa Devi Bhagat (dead) through L.R. Sadhna Rai (SMT.) (supra) and Bakshi Dev Raj (2) (supra). 22. TRUE it is that a counsel is competent to sign a compromise deed on behalf of a party/parties, duly represented by him in a particular litigation, as has been held by the Hon'ble Supreme Court in (1) Byram Pestonji Gariwala (supra), (2) Pushpa Devi Bhagat (dead) through L.R. Sadhna Rai (SMT.) (supra) and (3) Bakshi Dev Raj (2) (supra). However, the Hon'ble Apex Court has also sounded a word of caution in para 37 of the report in Re: Byram Pestonji Gariwala (supra), which is extracted below:- "We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immediate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communication, such contingency may seldom arise. A wise and careful counsel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingencies in order that neither his authority nor Integrity is ever doubted. In these days of easier and quicker communication, such contingency may seldom arise. A wise and careful counsel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingencies in order that neither his authority nor Integrity is ever doubted. This essential precaution will safeguard the personal reputation of counsel as well as uphold the prestige and dignity of the legal profession." Compromise deed dated 30.10.1999, Ex.D-4, an alternate copy whereof has been brought on record as Ex.D4- 1/F, which is re-produced below, has been set up on behalf of defendants No. 1 to 3:- "COMPROMISE DEED. The parties have compromised and due to the intervention of relations and common friends, the matter has been finally patched up and the plaintiff now admits that Smt. Kuldeep Kaur has executed the two wills dated 12.12.1994 and 31.8.1997 and that the plaintiff or any of the defendants 2 to 5 have no concern what-so-ever with the property 55-Model Town, Karnal and defendant no.1 Ranjeet Singh is the sole legal owner in possession of the property and the plaintiff and defendants 2 to 5 have got no concern what-so-ever with it. The two wills in original have been shown and have been read over and accepted as correct. The two wills have been legally executed in accordance with law by the mother of the parties and according to this Shri Ranjeet Singh alone is the owner in possession and he can deal with the suit property i.e. 55-Model Town, Karnal, in any way or manner as a law-ful owner can do and that the entire house belongs to Shri Ranjeet Singh alone. It is, therefore, prayed that in view of the compromise, the suit of the plaintiff be dismissed as fully satisfied and the compromise deed be made part of the decree. Plaintiff. Defendant No.1. Prithvijit Singh s/o Ranjeet Singh s/o late Late sh. Kehar Singh. Shri Kehar Singh. Sd/- Sd/- Through counsel Through counsel. Sd/- Sd/- Ranbir Singh R.D. Bali Advocate. Rahul Bali, Advocate. Defendant No.2 Smt. Jasjit Kaur d/o late Sh. Kehar Singh now wife of Brig. Jagjit Singh. Defendant No.3 Smt. Harjit Kaur d/o late Sh. Kehar Singh now wife of Shri Abnash Singh. Defendant No.4. Smt. Nirmaljit Kaur d/o late Sh. Kehar Singh now wife of Col. M.S. Paintal. Sd/- Sd/- Ranbir Singh R.D. Bali Advocate. Rahul Bali, Advocate. Defendant No.2 Smt. Jasjit Kaur d/o late Sh. Kehar Singh now wife of Brig. Jagjit Singh. Defendant No.3 Smt. Harjit Kaur d/o late Sh. Kehar Singh now wife of Shri Abnash Singh. Defendant No.4. Smt. Nirmaljit Kaur d/o late Sh. Kehar Singh now wife of Col. M.S. Paintal. Defendant No.5 Smt. Meena d/o late Shri Kehar Singh now wife of Sh. A.S. Johal Through counsel. Sohan Singh Sivia Advocate Sd/-" 23. ORDER dated 30.10.1999, passed by the court at Karnal (Haryana), pursuant to compromise Ex.D-4 (also Ex.D4-1/F) in the aforesaid Civil Suit No. 201 of 1998, titled as Prithvijit Singh vs. Ranjit Singh and others, reads as follows:- "Prithvijit Singh vs. Ranjit Singh etc. Present: Sh. Ranbir Singh Adv. for plaintiff. Sh. R.D. Bali Adv. For defendant no.1. Sh. Sohan Singh Advocate for defendant No.2 to 5. File taken up today in pursuant to application moved by the plaintiff. Notice of which was also served to the defendants. Plaintiff has submitted that he has effected compromise with the defendants. The compromise Ex.C-1 has been placed on the file and plaintiff has submitted that suit be dismissed as withdrawn. Counsel for the defendant no.1 has made a statement that compromise Ex.C-1 is correct. In view of this statement made by the plaintiff, suit of the plaintiff is dismissed as withdrawn. File be consigned to record room, after due compliance. Sd/- Civil Judge (Jr. Divn.), Karnal 30.10.99." has submitted that suit be dismissed as C-1 is correct as withdrawn. File be consigned to record room, after 24. COMPROMISE deed Ex.D-4 (also Ex.D4-1/F) comprises of two parts. In the first part it is recited that the plaintiff in the Knarnal suit, who is defendant No.4 herein, admitted that the testatrix had executed two wills dated 12.12.1994 and 31.8.1997. As far as this admission on the part of defendant No.4 is concerned, the same is not of much consequence, as the wills mentioned in the compromise deed are required to be proved in accordance with law, as has been held in S.R. Srinivasa and Others vs. S. Padmavathamma, (2010) 5 Supreme Court Cases 274. Both these wills have been set up on behalf of defendants No. 1 to 3, the issue regarding will dated 12.12.1994 (Ex.DW-5/C) is covered under substantial question of law No. X and shall be dealt with separately under that head. Both these wills have been set up on behalf of defendants No. 1 to 3, the issue regarding will dated 12.12.1994 (Ex.DW-5/C) is covered under substantial question of law No. X and shall be dealt with separately under that head. However, the will dated 31.8.1997 (mark-Z1), which is stated to be an extension of will Ex.DW-5/C, dated 12.12.1994 and thus a codicil, has neither been proved in accordance with law nor can be said to be a will or codicil for the reasons that on the one hand the original thereof has not been brought on record and on the other the same has also not been attested in accordance with the provisions of Section 63 of the Indian Succession Act. DW-5 Shri Gagan Mohan Chhiber, who has stated that the document dated 31.8.1997, mark Z-1 was drafted by him, cannot be said to be a marginal witness, as has been held in S.R. Srinivasa and Others vs. S. Padmavathamma, (supra). Apart from that a bare perusal of document dated 31.8.1997, mark Z-1 would go to show that the same has not been attested by two witnesses, as required under Section 63 of the Indian Succession Act and instead only one witness, namely Ajaib Singh, finds mention therein and he has also not been examined as a witness. The second part of compromise deed dated 30.10.1999, Ex.D-4/Ex.D4-1/F refers to the property involved in the Karnal suit, that is, 55, Model Town, Karnal. Admittedly, no share was allotted to defendants No. 2 to 5 in the Karnal suit, who are defendants No. 1 to 4 herein, in the Karnal property including 55, Model Town, Karnal, under the will dated 12.12.1994, Ex.DW- 5/C and as such they are not bound by this part of compromise deed Ex.D-4/Ex.D4-1/F, even if it is taken for a moment for the sake of argument that the compromise has been signed on their behalf by their learned counsel DW-2, Shri S.S. Sibia, Advocate. 25. A bare perusal of the order dated 30.10.1999, Ex.D- 10/Ex.D4-1/E, passed on the basis of compromise deed Ex.D- 4/Ex.D4-1/F, would go to show that the order was not pursuant to admission on the part of defendants No. 2 to 5 herein, who are defendants No. 1 to 3 herein or their learned counsel DW-2 Shri S.S. Sibia, whose presence though has been marked in the order. 26. 26. FURTHERMORE compromise deed dated 30.10.1999, Ex.D- 4/Ex.D4-1/F and order of even date Ex.D-10/Ex.D4-1/E were not followed by compromise decree, albeit the fact that the suit was dismissed as withdrawn, in which event also a decree ought to have followed on dismissal of the suit as withdrawn, pursuant to compromise. In view of the above, it can be safely concluded that it cannot be said that the provisions of Order 23 Rule 3 CPC have been misinterpreted by the learned lower appellate court to arrive at the inference that compromise deed Ex,.D-4/Ex.D4-1/F is not binding upon defendants No. 1 to 3, though for reasons entirely different from those given by the said court. 27. THE substantial question of law is answered accordingly. 28. IT is proposed to take up substantial question of law No. III for discussion and decision after disposal of substantial questions of law No. VIII and X relating to two wills dated 16.4.1992, Ex.PW-2/B and 12.12.1994 Ex.DW-5/C, set up on behalf of rival parties. On appreciation of evidence to prove due execution of a will defendants No. 1 to 3 have relied upon the following authorities:- 1. Benga Behra and Anr. V. Braja Kishore Nanda and Ors., AIR 2007 Supreme Court 1975; 2. Benga Behra and another vs. Braja Kishore Nanda and Others, (2007) 9 Supreme Court Cases 728; 3. S. Sundaresa Pal and others vs. Mrs. Sumangala T. Pal and another, AIR 2002 Supreme Court 317; 4. Rabindra Nath Mukherjee and anr. Vs. Panchanam Banerjee (dead) by LR's and others, 1995 (2) Civil Court Cases 396 (S.C.); 5. Shangara Singh vs. Jawala Singh, 1993 (2) Civ. C.C 33; 6. Kanwarani Madna Vati and another vs. Raghunath Singh and others, AIR 1976 (H.P.) 41 . 29. PER contra, the plaintiffs have placed reliance upon the following case law:- 1. Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana and Anr., 2011 (3) Apex Court Judgments 552 (S.C.); 2. Harbans Singh and others vs. German Singh (dead) thrugh his LRs and others, 2011 (5) RCR (Civil) 799; 3. Tajinder Singh and another vs. Ram Murti Lamberdar and others; 2010 (1) Shim. L.C 324; 4. Balathandayutham and another vs. Ezhilarasan, 2010 (3) R.A.J 128; 5. Yumnam Ongbi Tampha Ibemma Devi vs. Yumnam Joykumar Singh and Ors., 2009 (2) Apex Court Judgments 022 (S.C.). 30. DEFENDANT No. 4 has relied upon the following judgments:- 1. Tajinder Singh and another vs. Ram Murti Lamberdar and others; 2010 (1) Shim. L.C 324; 4. Balathandayutham and another vs. Ezhilarasan, 2010 (3) R.A.J 128; 5. Yumnam Ongbi Tampha Ibemma Devi vs. Yumnam Joykumar Singh and Ors., 2009 (2) Apex Court Judgments 022 (S.C.). 30. DEFENDANT No. 4 has relied upon the following judgments:- 1. Sat pal and others vs. Vyas Dev and others, Latest HLJ 2012 (HP) 1339; 2. Parso vs. Shri Suresh Kumar, Latest HLJ 2012 (HP) 1448; 3. S.R. Srinivasa and Others vs. S. Padmavathamma, (supra); 4. Bal Krishan and another vs. Shangri Devi and others, Latest HLJ 2008 (HP) 799; 5. Benga Behra and another vs. Braja Kishore Nanda and Others, (supra); 6. Deep Ram and others vs. Sh. Laxmi Nand and Others, 2000 (1) Shim. L.C. 240. Substantial question of law No. VIII Whether the unregistered Will dated 16.4.1992 (Ex.PW-2/A in fact Ex.PW-2/B) was admissible in evidence especially when the original is not on record and neither the existence nor its loss has been proved on record to fall within the parameters of Section 65 (c) of the Indian Evidence act, 1872 to fulfill the parameters of secondary evidence? Unregistered will Ex.PW-2/B propounded by the plaintiffs and supported by defendant No.4 has been adduced by way of secondary evidence under Section 65 of the Indian Evidence Act, pursuant to the permission granted by the learned trial court in this regard vide order dated 2.5.2008. 31. WILL Ex.PW-2/B is a holograph will reflecting the mind of the testatrix, to which great presumption of genuineness is attached, as has been held by the Hon'ble Supreme Court in Shashi Kumar Banerjee and others v. Subodh Kumar Banerjee since deceased and after him his legal representatives and others, AIR 1964 Supreme Court 529, vide relevant portion of para 5 of the report, which is extracted below:- "...Further the fact that the will is a holograph will and admittedly in the hand of testator and in the last paragraph of the will the testator had stated that he had signed the will in the presence of the witnesses and the witnesses had signed it in his presence and in the presence of each other raise strong presumption of its regularity and of its being duly executed and attested. On these facts there is hardly any suspicious circumstance attached to this will and it will in our opinion require very little evidence to prove due execution and attestation of the will. There is no doubt about the genuineness of the signature of the testator, for it is admitted that the signature at the foot of the will is his. .." 32. TO the similar effect is the law laid down by the Hon'ble Calcutta High Court in Ajit Chandra Majumdar v. Akhil Chandra Majumdar, AIR 1960 Calcutta 551, wherein it has been held as under vide relevant portion of para 9 of the report:- "The very first reason is that the will is a holograph will. The whole of this Will was written in the hand by the testator himself in English. The handwriting is clear and firm. The law makes a great presumption in favour of the genuineness of a holograph will for the very good reason that the mind of the testator in physically writing out his own Will is more apparent in a holograph will than where his signature alone appears to either a typed script or to a script written by somebody else. ..." Defendants No. 1 to 3 have pleaded vide para 4 of the written statement that "However late Smt. Kuldeep Kaur cancelled the will dated 19.4.1992 (in fact 16.4.1992) and executed a registered will in favour of late Sh. Ranjit Singh on 12.12.1994 regarding the suit property registered as Vasika No. 121/3 dated 12.12.1994. Copy of the will is attached herewith", meaning thereby that the execution of will Ex.PW-2/B dated 16.4.1992 stands impliedly admitted. 33. WILL Ex.PW-2/B dated 16.4.1992 has been proved in evidence by PW-2 Col. Balwant Singh, who has filed his affidavit in evidence Ex.PW-2/A. While appearing as PW-2 he has stated that will Ex.PW- 2/B was written by the testatrix and he had signed the same as an attesting witness. Shri B.S.Ahluwalia was the other attesting witness. According to him, the testatrix had signed the will in their presence and the signatures of the three are at A, B and C encircled in red. In cross examination he has stated that he knew the testatrix as before partition they were residents of the same place. After partition the testatrix was residing at Karnal. She was having two sons and four daughters. In cross examination he has stated that he knew the testatrix as before partition they were residents of the same place. After partition the testatrix was residing at Karnal. She was having two sons and four daughters. According to the witness, he knew them by their nicknames and their full names have been mentioned in the will. The witness goes to state that in 1992 the testatrix had come to Chandigarh to visit her daughter, where he was called telephonically. The testatrix was sitting there and Shri B.S.Ahluwalia was also with her. None other was present there at that time. When he went there the will had already been written. The testatrix had read over the same to both of them. According to him, the testatrix had told that Ranjit alias Kuku (original defendant) had earlier also got something written and signed from her forcibly and that this (EX.PW-2/B) is her genuine and last (aasal ba aakhiri) will. He has further stated that the testatrix had bequeathed three buildings situate at Karnal to both the sons and the land and the servant quarters situate at Dalhousie to her daughters. He has feigned ignorance that the testatrix had executed a will on 12.12.1994. However, he has denied that the testatrix had not executed any will on 16.4.1992 and that he was deposing falsely in collusion with the plaintiffs. 34. THUS, PW-2 Col. Balwant Singh, who is marginal witness to will Ex.PW-2/B, has proved the same beyond any doubt to have been executed by the testatrix in her own handwriting. A slight incongruity in his affidavit in evidence Ex.PW-2/A to the effect that the will Ex.PW-2/B was executed by the testatrix in his presence, as compared to his statement in cross examination that "when he reached the will had already been written" is not of much consequence in the facts and circumstances of the present case, as execution of will Ex.PW-2/B by the deceased stands admitted on behalf of defendants No. 1 to 3 in para 4 of the written statement, as already observed. Since will Ex.PW-2/B earlier marked as 'A' was neither executed in the presence of PW-1 Harjit Kaur nor she is a marginal witness to the same, her statement during cross examination that the same was written by the testatrix at Karnal is also of no significance. Since will Ex.PW-2/B earlier marked as 'A' was neither executed in the presence of PW-1 Harjit Kaur nor she is a marginal witness to the same, her statement during cross examination that the same was written by the testatrix at Karnal is also of no significance. On the same analogy the statement of DW 4-1 Prithvijit Singh during cross examination that the will (Ex.PW-2/B) comprised of 3-4 leaves and was written on both sides on plain paper is also required to be overlooked. Substantial question of law No. X Whether the Regd. Will dated 12.12.1994 (Ex.DW-5/C) in favour of the father of the appellants has been proved as per the Parameters of Section 68 of the Evidence Act by examining the attesting witness and the Registration Clerk as DW-5 and DW-3 respectively ? Registered will dated 12.12.1994 (Ex.DW-5/C) has been propounded by defendants No. 1 to 3. It is proved in evidence by DW-5 Shri Gagan Mohan Chhiber, one of the attesting witnesses to the will. DW-3 Shri Karamveer Singh, Registration Clerk, office of the Sub Registrar, Karnal (Haryana), has stated that will Ex.DW-5/C was registered in the office of the Sub Registrar, Karnal (Haryana) on 12.12.1994, vide registration No. 121/3 and is correct as per record of the said office. However, will Ex.DW-5/C is shrouded by grave suspicious circumstances to be enumerated hereinafter. 35. AS already noticed, unregistered holograph will Ex.DW- 2/B dated 16.4.1992, stands impliedly admitted on behalf of defendants No. 1 to 3 in their written statement. 36. A few months before will Ex.DW-5/C, dated 12.12.1994, was allegedly executed by the testatrix, the original defendant had got executed in his favour a perpetual lease for 99 years in respect of the property at Dalhousie (Himachal Pradesh), vide lease deed dated 7.4.1994 Ex.DW-5/B through DW-5 Shri Gagan Mohan Chhiber, as her attorney. Soon thereafter will Ex.DW-5/C, dated 12.12.1994, was allegedly executed by the testatrix cancelling the earlier will Ex.PW-2/B, dated 16.4.1992. However, in will Ex.DW-5/C, dated 12.12.1994, neither there is any mention about the earlier will Ex.PW-2/B, dated 16.4.1992 nor any reason has been stated therein for cancellation of the said will. Soon thereafter will Ex.DW-5/C, dated 12.12.1994, was allegedly executed by the testatrix cancelling the earlier will Ex.PW-2/B, dated 16.4.1992. However, in will Ex.DW-5/C, dated 12.12.1994, neither there is any mention about the earlier will Ex.PW-2/B, dated 16.4.1992 nor any reason has been stated therein for cancellation of the said will. In will Ex.PW-2/B the testatrix had made provision for all her children, that is, two sons (original defendant and defendant No.4) and daughters (plaintiffs No. 1 to 4), though a substantial portion of the estate was bequeathed by her in favour of two sons and only a small portion comprising of a cottage, a servant quarter alongwith some land abutting the same was given to the daughters. Once the testatrix had made a provision for her daughters as well, the reason to disinherit them in will Ex.DW-5/C, dated 12.12.1994 that considerable amount of money including dowry was spent on their marriages and thereafter in the shape of gifts, ornaments, clothes, cash etc. as per rites and customs does not hold good, as the same existed even at the time of execution of will Ex.PW-2/B, dated 16.4.1992. 37. QUITE strangely will Ex.DW-5/C, dated 12.12.1994, bears a certificate of one Doctor G.D. Sharma of Karnal to the effect "that Smt. Kuldeep Kaur is examined by me & found physically & mentally fit". Neither the said Doctor G.D. Sharma nor the Sub Registrar, Karnal, who was legally bound to ascertain that the testatrix was in a fit state of physical and mental health to execute the will, has been examined to show as to what were the circumstances under which such examination was required and where and in what manner the same was carried out. DW- 3 Shri Karamveer Singh, Registration Clerk has also not stated anything about it. 38. IT has already been held in para 35 of this judgment that document mark Z-1, dated 31.8.1997, cannot be said to be a will/codicil by any stretch of imagination. DW- 3 Shri Karamveer Singh, Registration Clerk has also not stated anything about it. 38. IT has already been held in para 35 of this judgment that document mark Z-1, dated 31.8.1997, cannot be said to be a will/codicil by any stretch of imagination. However, it can be safely inferred that preparation of this document was a clandestine attempt on the part of the original defendant in collusion with DW-5 Shri Gagan Mohan Chhiber to nullify will Ex.DW-5/C, dated 12.12.1994 to the extent it made provision in favour of defendant No. 4 Prithvijit Singh and substitute defendant No.2 Shri Karan Mamick, who is son of the original defendant, late Shri Ranjit Singh, as a co-beneficiary qua that part of the legacy. In the peculiar facts and circumstances of the case role of DW-5 Shri Gagan Mohan Chhiber, who was associated at every stage, firstly at the time of execution of lease deed Ex.DW-5/B, dated 7.4.1994, as attorney of the testatrix, secondly at the time of execution of will Ex.DW-5/C, dated 12.12.1994 and lastly at the time of execution of document mark Z-1. 39. AGAINST the foregoing background it can be safely concluded that will Ex.DW-5/C, dated 12.12.1994, is shrouded by grave suspicious circumstances rendering the same to be highly doubtful. 40. SUBSTANTIAL question of law is answered accordingly. Substantial question of law No. III Whether the present suit is also time barred especially when the respondents had the knowledge of the Regd. Will dated 12.12.1994 in the year 1998 and the present suit has been filed thereafter in October, 2003? On the point of limitation defendants No. 1 to 3 have relied upon the following case law:- 1. Kamlesh Babu and Ors. vs. Lajpat Rai Sharma and Ors., 2008 (2) R.C.R (Civil) 872 : (2008) 12 Supreme Court Cases 577; 2. Ramti Devi (Smt.) vs. Union of India, (1995) 1 Supreme Court Cases 198. 41. PER contra, defendant No. 4 has sought support from the following reports:- 1. Judgment dated 21.12.2012 of this Court in RSA No. 318 of 2000-D, along with Cross Objections No. 536 of 2000, Shri Paras Ram vs. Shri Devi Ram and others; 2. Shiam Singh and others vs. Chaman Lal and others, 2011 (2) Shim L.C 1. 42. WILL Ex. DW-5/C was allegedly executed by the testatrix on 12.12.1994. She had died on 08.03.1998. Mutation Ex. Shiam Singh and others vs. Chaman Lal and others, 2011 (2) Shim L.C 1. 42. WILL Ex. DW-5/C was allegedly executed by the testatrix on 12.12.1994. She had died on 08.03.1998. Mutation Ex. D-1 dated 24.06.1999 was attested on the basis of Will Ex. DW-5/C dated 12.12.1994, a perusal whereof would go to show that in the pedigree table incorporated therein, names of the plaintiffs find due mention as natural heirs of the testatrix being her daughters, but no notice was issued to them before attestation of mutation Ex. DZ-1 dated 24.06.1999. The record further reveals that application Ex. D4-1-/N dated 16.06.1998 was submitted by defendant No. 4 Prithvijit Singh to the Tehsildar, Dalhousie, H.P., alongwith death certificate of the deceased and certified copy of will dated 16.04.1992 (Ex. PW-2/B) executed by the testatrix in favour of the plaintiffs, original defendant and defendant No. 4 Prithvijit Singh, which also bears the endorsement of the said Tehsildar dated 16.06.1998 in token of receipt of the application alongwith death certificate and copy of the Will. There is due mention about it in mutation Ex. D-1 dated 24.06.1999, but even despite that no notice was issued to the plaintiffs, who were also beneficiaries under Will Ex. PW-2/B dated 16.04.1992. Furthermore, a perusal of mutation Ex. DZ-1 would go to show that after the notice initially issued to defendant No. 4 on 09.06.1999 for 17.06.1999 on his New Delhi address through ordinary process could not be served upon him, a fresh notice was ordered to be issued to him on 17.6.1999 through registered post for 24.06.1999, when the mutation was attested after drawing the presumption that as he did not appear despite notice, he had no objection against the registered Will dated 12.12.1994 (Ex. DW- 5/C), albeit the fact that the requisite period of one month for drawing such presumption had not elapsed between issuance of notice booked through registered post on 18.06.1999 and attestation of mutation dated 24.06.1999, the intervening period being only of six days. It shall also be pertinent to observe that defendant No. 4 Prithvijit Singh is also one of the beneficiaries under Will dated 16.04.1992 (Ex. PW-2/B). 43. IN view of the above, the suit cannot be said to be barred by time and the substantial question of law No. III is answered accordingly. It shall also be pertinent to observe that defendant No. 4 Prithvijit Singh is also one of the beneficiaries under Will dated 16.04.1992 (Ex. PW-2/B). 43. IN view of the above, the suit cannot be said to be barred by time and the substantial question of law No. III is answered accordingly. Substantial question No. XVI: Whether the suit was not maintainable as relief of possession has not been claimed in the suit and on the other hand, the possession of the appellants stands admitted in view of the law laid down by this Hon'ble Court and the Hon'ble Supreme Court in Sita Ram Vs. Hari Krishan, 2000 (1) CCC 704 (H.P), Ram Saran and another Vs. Smt. Ganga Devi, AIR 1972 SC 2685 and Vinay Krishna Vs. Keshav Chandra and another, AIR 1993 SC 957 ? 44. THOUGH admittedly defendants No. 1 to 3 are coming in possession of the suit property through the original defendant, yet the fact remains that the possession of the original plaintiff was initially as a lessee under lease deed Ex. DW-5/B dated 07.04.1994 executed in his favour by the testatrix through her attorney DW-5, Shri Gagan Mohan Chhiber. As it has already been held that the testatrix had executed Will dated 16.04.1992 Ex. PW-2/B in favour of the plaintiffs, original defendant (succeeded by defendants No. 1 to 3) and defendant No. 4 Prithvijit Singh and Will dated 12.12.1994 Ex. DW-5/C allegedly executed by the testatrix is shrouded by grave suspicious circumstances, the status of the original defendant as lessee under lease deed Ex.DW-5/B dated 07.04.1994 stood automatically converted to that of a co-owner being one of the beneficiaries under Will dated 16.04.1992 Ex. PW-2/B executed by the testatrix, the plaintiffs and defendant No. 4 Prithvijit Singh being the other co-owners on the basis of the said Will. The settled legal position that possession of a co-owner is for and on behalf of all other co-owners, need not be reiterated. It being so, the suit filed by the plaintiffs for grant of a decree of declaration etc. to the effect that they alongwith defendant No.4 Prithvijit Singh are co- owners in possession of the suit property cannot be said to be not maintainable in the absence of a prayer for grant of relief for possession. The substantial question of law is decided accordingly. to the effect that they alongwith defendant No.4 Prithvijit Singh are co- owners in possession of the suit property cannot be said to be not maintainable in the absence of a prayer for grant of relief for possession. The substantial question of law is decided accordingly. In the peculiar facts and circumstances of the case, the prayer on behalf of the defendants for framing of identical additional questions of law No. V and VII in the respective appeals, which are reproduced below, and another substantial question of law relating to variance between the pleadings and proof on behalf of the plaintiffs, is not legally tenable and is accordingly declined: "V. Whether the malafide intention of the respondents is also apparent from the fact that the suit filed in the present case was filed by impleading Prithvijit Singh as plaintiff No. 2 and who was got later transposed as defendant No. 4 of transpositions also illegal? VII. Whether the present suit is a malafide suit and has been filed after a period of four years by the respondents just to harass the appellants / their father and the same is by way of an after thought?" 45. THE cumulative effect of the above discussion and decision on the substantial questions of law under consideration is that the appeals fail and are accordingly dismissed with no orders as to costs keeping in view the inter se relationship between the parties.