JUDGMENT : 1. These two Civil 2nd appeals are directed against the judgment and decree passed by the 1st appellate court (Additional District Judge, Ramban) in the appeal titled “Mst. Janki Bai v. Jawahar Institute of Mountaineering and Winter Sports & ors” dated 14th March, 2000. 2. In Civil 2nd Appeal No. 32/2003, following two substantial questions of law have been formulated: (1) Where the challenge is made to the will, whether subsequent withdrawal of the suit amounts to admission of the will and whether the beneficiary under the will is still required to prove the will in a suit where claim is based upon such a will? (2) Whether in a suit for possession based upon right emanating from the will, the court can grant declaration that the parties to the suit are co-sharers being legal representatives of deceased? In Civil 2nd Appeal No. 7/2000, following two substantial questions of law have been formulated: (1) Whether the first appellate court correct in deciding the case in terms of Section 6 of the Hindu Succession Act, 1956 when there was absolutely no plea to that effect and when sole case of the plaintiff was based on a will which was never produced and proved? (2) Whether the respondent could inherit under section 6 of the Hindu Succession Act, 1956 despite the fact that she had been married to a non-state subject? 3. Shri Har Krishan Lal (deceased), father of Janki Bai and father-in-law of Smt. Leela Choudhary, had constructed a two storeyed building on survey No. 284/130/36 situated at Village Tringla Batote, so was in possession of the same. He (deceased) has executed a will deed on 2nd August, 1990 mentioning therein that he has already compensated his two elder daughters and daughter-in-law, therefore, two storeyed house built on 2 kanals and 5 marlas of land is given to his youger daughter Janki Bai out of his free will and affection as she has been looking after him for last ten years at an advanced age. 4. 4. After the death of the testator (deceased), Smt. Leela Choudhary (hereinafter referred to as the defendant) taking advantage of absence of Smt. Janki Bai (hereinafter referred to as the plaintiff), representing herself to be the owner of the suit property, has executed a rent note dated 04.05.1991 in favour of Jawahar Institute of Mountaineering and Winter Sports (hereinafter referred to as the Institute), where-under in an illegal manner delivered possession of the ground floor of the suit building in favour of the Institute. 5. The plaintiff filed a suit for possession of the ground floor of the suit building. During its pendency, defendant on 04.08.1992 also instituted a suit for declaration for declaring the will deed dated 2nd August, 1990 executed by Shri Har Krishan Lal (deceased) and registered by Sub-Registrar, Chandigarh on 19.02.1991, to be null and void and inoperative vis-a-vis her rights, interests and claim with a further prayer that the plaintiff be directed to deliver possession of the first floor of the suit house in favour of the defendant. Earlier also, defendant had filed another suit on 3rd May, 1991 with the prayer that the plaintiff shall be permanently restrained from interfering into her peaceful possession over the double storeyed house and the land appurtenant thereto. 6. All the aforesaid three suits were clubbed, however, when all the cases reached to final stage, defendant unconditionally withdrew two suits as were instituted by her. 7. The suit filed by the plaintiff captioned Janki Bai v. Jawahar Institute of Mountaineering & Winter Sports & ors. for possession survived for final determination. In the said suit, on the basis of respective pleadings of the parties, following issues were framed: 1. Whether the suit is not maintainable under S.9 of Specific Relief Act? OPD 2. Whether the suit is not properly valued, if so, what is the correct valuation? OPD 3. Whether the suit property has vested in the plaintiff on the strength of a will deed executed by its owner Har Krishan Lal, dated 2nd Aug, 1990, who has since died? OPP 4. Whether the plaintiff was in exclusive possession of the whole building till May 1991, when defendant No. 2 took forcible and illegal possession of ground floor of the suit house and let it on rent to defendant No. 1 without any right, claim or title? OPP 5. If issue Nos. OPP 4. Whether the plaintiff was in exclusive possession of the whole building till May 1991, when defendant No. 2 took forcible and illegal possession of ground floor of the suit house and let it on rent to defendant No. 1 without any right, claim or title? OPP 5. If issue Nos. 3 & 4 are proved, whether the possession of defendant No. 1 in the ground floor of the suit house is illegal and that of a trespasser and the relationship of tenant and landlord between defendants is fictitious? OPP 6. Relief, which the plaintiff is entitled to? OPP 8. The trial court (Sub Judge, Batote) while recording finding on issue No. 3 has opined that the will deed stated to have been executed on 2nd August, 1990 has neither been produced nor proved when it is the basic foundation of the suit. It being so, the defendant is entitled to inherit the property as a legal heir. 9. While recording finding on issue No. 4 has opined that being a legal heir, defendant has every right to rent out the suit building to the Institute. The suit filed by the plaintiff, as such, has been dismissed and decree accordingly has been drawn. 10. Aggrieved by the said judgment and decree, the plaintiff filed an appeal which has been decided by the first appellate court (Additional District Judge, Ramban) on 14th March, 2000. Learned first appellate court has opined that in terms of Section 6 of the Hindu Succession Act, plaintiff Janki Bai being daughter of Har Krishan Lal will take one share and the defendant Leela Choudhary and her children being respectively widow and sons of pre-deceased son of Har Krishan shall taken in between them one share in equal proportion. The judgment and decree of the trial court has been modified accordingly. Both plaintiff and defendant aggrieved by the said judgment have filed instant two separate civil 2nd appeals. 11. While considering the rival submissions of the learned counsel for the parties and after considering the whole record, what would emerge is that the learned 1st appellate court has gone beyond the pleadings of the parties. Both plaintiff and defendant aggrieved by the said judgment have filed instant two separate civil 2nd appeals. 11. While considering the rival submissions of the learned counsel for the parties and after considering the whole record, what would emerge is that the learned 1st appellate court has gone beyond the pleadings of the parties. The question was as to whether the property had vested to plaintiff Janki Bai on the strength of will deed executed in her favour on 2nd August, 1990 by the testator and as to whether possession of the ground floor was illegally delivered by the defendant in favour of Jawahar Institute. 12. Neither the trial court nor the 1st appellate court have addressed the real issue i.e. issue No. 3. In the plaint filed by the plaintiff, it has been specifically pleaded in para 1 that Har Krishan Lal (testator) has made proper will of the suit property in favour of the plaintiff and after the death of testator, property vested in her and it is she who was in exclusive possession even during the lifetime of the testator. In the written statement as filed by the defendants therein i.e. Jawahar Institute and Leela Choudhary it has been pleaded that para 1 of the plaint is admitted to the extent that a two storeyed building stands constructed in Mouza Tringla Batote Tehsil Ramban in Survey No. 284/130/36 and the same was in ownership and possession of Har Krishan Lal who was the father of the plaintiff (Janki Bai). Rest of para is denied. As such, in the written statement defendants have not pleaded anything adverse to the will deed except a simple denial i.e. “rest of para is denied” which is an evasive denial, therefore, will deed was not required to be proved and, in effect, it was admitted. 13. The defendant had filed a separate suit seeking declaration to the effect that the will deed be declared as null and void but she has withdrawn the suit unconditionally. When it is so, Order 23 sub-rule (4) of Rule 1 of the Code of Civil Procedure operates. 13. The defendant had filed a separate suit seeking declaration to the effect that the will deed be declared as null and void but she has withdrawn the suit unconditionally. When it is so, Order 23 sub-rule (4) of Rule 1 of the Code of Civil Procedure operates. Order 23 Rule 1(4) CPC reads as under: “(4) Where the plaintiff- (a) Abandons any suit or part of claim under sub-rule (1), or (b) Withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. 14. With the withdrawal of suit, defendant had abandoned the claim vis-a-vis will deed. In the said suit will deed was on the records and an issue was framed. It would not be open for her to say anything against the will deed and the trial court should have considered the same aspect which has not been. Rule of preclusion or abandonment has to operate in such like circumstances. 15. The finding recorded by the trial court and affirmed by the first appellate court that the will deed has not been placed on record and has not been proved is totally misplaced in view of the pleadings of the parties coupled with the fact of abandonment of claim by the respondent in the clubbed suits. Therefore, the will deed executed in favour of the plaintiff is in force and has to take its effect. 16. During the course of arguments finally, learned counsel for the plaintiff stated that the Institute has surrendered possession of the ground floor of the building in favour of the plaintiff, therefore, no one except plaintiff has absolute right to hold the suit property. The position as projected would suggest that the suit for possession, filed by the plaintiff, with the surrender of possession of the ground floor in her favour, no more survives. The suit on such count i.e. for non-survival of cause, has to be dismissed. 17. The position as projected would suggest that the suit for possession, filed by the plaintiff, with the surrender of possession of the ground floor in her favour, no more survives. The suit on such count i.e. for non-survival of cause, has to be dismissed. 17. Cumulative effect of the aforesaid position leads to only one conclusion that the withdrawal of the suit filed by the defendant for declaring the will deed as null and void amounts to admission that the will deed is in existence, therefore, no question survives for declaring the parties to the suit as co-sharers. The two questions formulated as substantial questions of law in Civil 2nd Appeal No. 32/2003 are accordingly answered. 18. There was no plea for deciding the case in terms of Section 6 of the Hindu Succession Act, 1956 and the case was solely based on the strength of will deed, the existence of which was not specifically denied and in addition thereto, with the withdrawal of the suit filed by the defendant seeking declaration of the will deed as null and void, is precluded from denying the existence of will deed. 19. For the afore-stated reasons, both the appeals are allowed. Judgments and decree passed by the trial court as well as by the 1st appellate court are set aside. Suit filed by the plaintiff, for non-survival of cause, is dismissed. Parties, if required, may work out other remedies, if any available, for safeguarding their other interests. Decree sheet be drawn accordingly. 20. First appellate court record as well as trial court record along with copy of the judgment and decree be sent back.