JUDGMENT Hon’ble Anant Kumar, J.—This second appeal has been filed against the judgment and decree dated 4.11.1987 passed by Civil Judge, Basti in Civil Appeal No. 420 of 1983 preferred against the judgment and decree dated 30.9.1983 passed by IVth Additional Munsif, Basti in Original Suit No. 519 of 1982. 2. The brief facts relevant for disposal of this second appeal are that one Badri had filed a suit for cancellation of a sale-deed dated 4.10.1982, which was executed by one Smt. Chhotka-defendant No. 6 in favour of defendant Nos. 1 to 5. In paragraph 1 of the plaint a pedigree was given, which shows that one Ramdeen was having three sons. One son Jagdutt was having a son Parag and Smt. Chhotka was wife of Parag. Parag was not having any issue and only old aged wife Chhotka was there. Parag was also an old person. It is stated in the plaint that Parag and his wife Chhotka were living with the plaintiff Badri, who was one of the sons of Katai who was also from the same family. It is stated that both the persons Parag and Chhotka were living with the plaintiff Badri and he was lookingafter and giving all the services to them and due to this services rendered by the plaintiff Badri, Parag had executed a Will dated 1.7.1982 with the consent of his wife defendant No. 6 Chhotka in favour of Badri. Parag died on 1.9.1982 thereafter the plaintiff moved an application for mutation on the basis of the said Will in his favour which was pending. In the meantime, after the death of Parag, the defendant No. 6 Chhotka was annoyed with the plaintiff Badri and taking advantage of this annoyance, when the plaintiff was busy in last rites etc. of Parag, the defendant Nos. 1 to 5 got a sale-deed executed from Chhotka in their favour on 4.10.1982. The plaintiff came to know about the said sale-deed in the last of month of October, 1982. Immediately after coming to know about the sale-deed, the plaintiff filed a suit for cancellation of the sale-deed on different grounds as stated in paragraph 5 of the plaint. The defendant Nos. The plaintiff came to know about the said sale-deed in the last of month of October, 1982. Immediately after coming to know about the sale-deed, the plaintiff filed a suit for cancellation of the sale-deed on different grounds as stated in paragraph 5 of the plaint. The defendant Nos. 1 to 5 appeared in the case and filed their joint written statement wherein the plaint allegations were denied and it was stated that the plaintiff has no cause of action to file the suit against the defendant Nos. 1 to 5. It was also denied that during life time Parag and Chhotka were living with the plaintiff Badri. It was pleaded that they were living separately and they were lookingafter the agricultural field separately. They were not living with the plaintiff Badri and the plaintiff Badri was not giving services to them. It was also denied that Parag had executed any Will in favour of the plaintiff Badri and if at all there is any Will deed in his favour, it is false, fabricated and does not confer any right or title upon the plaintiff. It was further stated that even during life time of Parag they had settled regarding sale-deed of the disputed land with Parag and during life time, the defendant Nos. 1 to 5 were making payment in installments to Parag regarding sale consideration but all of sudden Parag fell ill and has died and could not execute the sale-deed. Chhotka executed the sale-deed after the payment of balance amount of sale consideration on 4.10.1982 and after execution of sale-deed, there was a dispute between the parties in respect of the said land. It was also stated that the sale-deed dated 4.10.1982 was executed by Chhotka for which she has got every right. 3. On the basis of the pleadings of the parties, the learned trial Court framed various issues amongst them. Issue No. 1 was as to whether sale-deed was liable to be cancelled on the grounds taken in the plaint. Another issue was also framed as to whether plaintiff is the owner in possession of the land in dispute. On behalf of the parties, oral as well as documentary evidences were adduced. On behalf of the plaintiff, attesting witnesses as well as scriber of the sale-deed were produced. Another issue was also framed as to whether plaintiff is the owner in possession of the land in dispute. On behalf of the parties, oral as well as documentary evidences were adduced. On behalf of the plaintiff, attesting witnesses as well as scriber of the sale-deed were produced. It is noteworthy that before the trial Court neither the defendant No. 6 Chhotka appeared nor filed any written statement. 4. After hearing the parties while deciding the issue Nos. 1 and 2 together, the learned trial Court came to the conclusion that from the evidence on record, it is proved that though Badri and Parag were living separately but Parag was taking food alongwith Badri. Looking to the oral evidence adduced on behalf of the plaintiff, the learned trial Court came to the conclusion that the Will deed produced by by the plaintiff, its execution was proved before the Court rather, sale-deed was suspicious so far as the payment of sale consideration in part was concerned. It was also held by learned trial Court that Smt. Chhotka was well within the knowledge of the said Will deed, as such, she had no right to execute any sale-deed after the death of Parag. Since their Will was proved before the trial Court, the learned trial Court decreed the suit and cancelled the registered sale-deed dated 4.10.1982 registered in the office of Sub Registrar on 6.10.1982. 5. Feeling aggrieved with the said order, the defendant Nos. 1 to 5 filed Civil Appeal No. 420 of 1983 before the District Judge, Basti. The said appeal was transferred to the Court of Civil Judge, Basti. After hearing the parties, the learned lower appellate Court came to the conclusion that the Will deed (Ext.-5) is full of suspicion. It was incumbent upon the plaintiff to get the thumb impression of Parag compared with some expert which he had not done. The Will deed is not registered, otherwise it would have been easy to prove the same. The attesting witnesses are interested witnesses so the trial Court had committed mistake in relying upon the statements of the witnesses. The learned lower appellate Court stated that the said sale-deed is proved before the Court, accordingly the appeal was allowed and the suit of the plaintiff was dismissed. Hence this appeal has been filed. 6. The attesting witnesses are interested witnesses so the trial Court had committed mistake in relying upon the statements of the witnesses. The learned lower appellate Court stated that the said sale-deed is proved before the Court, accordingly the appeal was allowed and the suit of the plaintiff was dismissed. Hence this appeal has been filed. 6. I have heard Sri V.D. Ojha assisted by Sri P.N. Singh, learned counsel for the appellant and Sri P.P. Chaudhary, learned counsel for the respondents and perused the record. 7. Learned counsel for the appellant has stated that the learned trial Court had rightly believed the statements of the attesting witnesses as well as scriber of the Will and had rightly held that the Will was proved before it. The learned trial Court had got every opportunity to look into demeanour of the witnesses produced before the Court which opportunity was not there with the lower appellate Court, as such the lower appellate Court should not have disbelieved the statements of the attesting witnesses as well as scriber of the Will. The lower appellate Court has recorded its finding totally on the basis of surmises and conjectures and assumption, which has neither been pleaded by the defendants nor any cross-examination has been done on these points. 8. After hearing the learned counsel for the parties, on 18.2.2005 following substantial questions of law were framed by this Court : 1. Whether the will in favour of the plaintiff has been fully proved by the statements of scribe of the attesting witnesses, the statement of scribe and attesting witnesses have not been considered by the lower appellate Court ? 2. Whether the plaintiff appellant has been deprived of reasonable opportunity to produce evidence in support of his case ? 3. Whether the lower appellate Court has misread and misconstrued the plaintiff’s evidence including Will Exhibit 5 ? 4. Whether the finding of the lower appellate Court that plaintiff’s witnesses are interested is based on no material ? 9. So far as first and third substantial questions of law are concerned, since both the questions are connected to each other, as such, they are considered and decided jointly. It is evident from the record that before the trial Court, attesting witnesses namely Shree Ram PW-1 and Hardwar PW-2 were produced whereas Radhey Shyam PW-4 scriber of the Will deed was produced. It is evident from the record that before the trial Court, attesting witnesses namely Shree Ram PW-1 and Hardwar PW-2 were produced whereas Radhey Shyam PW-4 scriber of the Will deed was produced. The learned trial Court had discussed evidence of the witnesses in detail and had stated that there are minor contradictions in the statements of the witnesses but leaving aside them, the statements of the witnesses are intacting and they are worth to be relied upon and after deeply scrutinizing and analysing the evidence, the learned trial Court had placed reliance on the statements of the witnesses but the learned lower appellate Court has disbelieved the said Will mainly on the ground that Parag had not left any property for Chhotka for her livelihood though there was no need to get the Will registered but if it would not have been registered, it could not have been easily proved. The plaintiff played important role in getting the Will deed executed in his favour. Since the Will has been executed in suspicious circumstances, the plaintiff should have got expert opinion regarding thumb impression of Parag and Chhotka. Smt. Chhotka had not filed any written statement before the trial Court which proves that she was under influence of the plaintiff. Smt. Chhotka appeared before the lower appellate Court and denied execution of the Will through an application. At appellate stage also the plaintiff did not make any effort to get expert opinion. There are material contradictions in the statements of the attesting witnesses as well as scriber of the Will. 10. It is evident from the record that the defendant Nos. 1 to 5 had filed their written statement before the trial Court but no such grounds were pleaded by them. Merely it was stated that Parag and Chhotka were not living with the plaintiff Badri and the plaintiff was not giving any service to them. However, in my view, all the grounds taken by the learned lower appellate Court for disbelieving the Will are solely based on surmises and conjectures and is the result of own wishes of the lower appellate Court for which no material is there on record. The contradictions which the lower appellate Court has mentioned in the judgment are very minor in nature and these things have been considered by the learned trial Court. The contradictions which the lower appellate Court has mentioned in the judgment are very minor in nature and these things have been considered by the learned trial Court. This apart, in my view, the learned trial Court had got an opportunity to look into demeanour of the witnesses when they were produced before the trial Court. The learned trial Court was in better position to assess the evidence of the attesting witnesses as well as scriber. There is one more aspect of the matter that before the trial Court Chhotka was made party as one of the defendants in the case and she was served with a notice but she has chosen not to appear before the trial Court or to file written statement. So, the conclusion of the lower appellate Court that she was under the influence of plaintiff is not based on any material on record. If she would not have witnessed the Will, she could have fairly come with the case that she had not witnessed the said Will and Parag had never executed the said Will in favour of the plaintiff. 11. So, looking to the entire facts and circumstances of the case, I am of the view that the Will executed in favour of the plaintiff was duly proved by the statements of the scriber and attesting witnesses, which has not been properly considered by the lower appellate Court. The findings of the lower appellate Court for negating the Will are totally based on surmises and conjunctures and not based on real facts. The learned lower appellate Court has misread and misconstrued the plaintiff’s evidence and has given a wrong finding that the witnesses are related to the plaintiff whereas no such material has come before the lower appellate Court in this regard. 12. So far as the second substantial question of law is concerned, the record shows that before the trial Court the appellant-plaintiff had moved an application 44-Ga for getting the report of expert regarding thumb impression of Parag, which was rejected by the trial Court on 10.8.1983. However, since the learned trial Court had given full opportunity to the plaintiff to adduce evidence regarding the said Will which was availed by the plaintiff and had produced scriber as well as attesting witnesses of the Will. However, since the learned trial Court had given full opportunity to the plaintiff to adduce evidence regarding the said Will which was availed by the plaintiff and had produced scriber as well as attesting witnesses of the Will. So merely on the ground that the application 44-Ga was rejected by the trial Court, it cannot be said that the plaintiff was deprived of reasonable opportunity to produce evidence in support of his case. 13. So far as the substantial question No. 4 is concerned, a passing remark has been made in the judgment that the attesting witnesses and scriber of the Will, who have been produced on behalf of the plaintiff, are interested witnesses in favour of the plaintiff but in this regard no elaboration has been made by the lower appellate Court as to on what ground the lower appellate Court has come to the conclusion that the attesting witnesses and scriber of the Will produced by the plaintiff are interested in his favour. No near relationship has also been taken into consideration by the lower appellate Court and much emphasis has been placed by the learned lower appellate Court only on the ground that the plaintiff has failed to get expert report regarding thumb impression as also that the said document is not registered. 14. In my view, these considerations taken into account account by the lower appellate Court are irrelevant. Once the Will was proved before the trial Court, there was no need for any such expert opinion or getting the Will registered. This apart from the material on record, it is evident that the plaintiff-appellant had served an interrogatory upon defendant Nos. 1 to 5 as to whether they are in knowledge of admitted thumb impression of Parag which was replied by the defendants to this effect that they are not in knowledge of any such document which was containing thumb impression of Parag. So to my view, the plaintiff made all his efforts to get the said thumb impression examined by the expert also but he could not succeed for one reason or the other but merely on these grounds, it cannot be said that the said Will was not proved before the trial Court. Accordingly, in my view, the finding of the lower appellate Court that the plaintiff’s witnesses are interested, are based on no material. Accordingly, in my view, the finding of the lower appellate Court that the plaintiff’s witnesses are interested, are based on no material. Therefore, in my view, the Will produced by the plaintiff was proved before the trial Court. The judgment of the trial Court is well discussed and well founded. 15. In these circumstances, in my view, the appeal is liable to be allowed and the judgment and decree of the lower appellate Court is liable to be set aside and that of the trial Court is liable to be upheld. 16. Accordingly, the appeal is allowed. The judgment and decree of the lower appellate Court dated 4.11.1987 is set aside and judgment and decree of the trial Court dated 30.9.1983 is upheld. 17. No order is passed as to costs.