JUDGMENT Hon’ble Harsh Kumar, J.—This is defendant’s second appeal against the judgment and decree passed by Ist Additional Civil Judge, Gorakhpur on 22.4.1988 in Civil Appeal No. 384 of 1986 “Ramesh Chandra v. Ram Niwas”, arising out of Original Suit No. 342 of 1974 “Ramesh Chandra v. Ram Niwas”, by which allowing the Civil Appeal No. 384 of 1986 and setting aside the judgment and decree passed by trial Court, the suit of plaintiff for possession was decreed. 2. 2. The brief facts relating to the present appeal are that plaintiff-respondent Ramesh Chandra filed civil suit against Ram Niwas on 28.2.1974 for a decree of ejectment and possession as well as for recovery of damages for use and occupation with the allegations, that the defendant was in possession of the house in suit as lecensee with the permission of Ram Kishun; that Ram Kishun had executed a will deed in favour of his wife Smt. Murta Devi, who died intestate on 15.11.1972 leaving behind her the only heir and legal representative, her husband Ram Kishun; that Ram Kishun executed a will deed in favour of plaintiff on 27.12.1972 and upon death of Ram Kishun on 5.11.1973, the plaintiff became exclusive owner of the house in suit; that the plaintiff terminated the license of defendant through valid notice dated 5.12.1973 which was served on him on 13.12.1973; that the defendant in his written statement denied the allegations made in plaint and contended that Smt. Murta Devi had two brothers Triveni and Satya Narain; that while plaintiff is the son of Triveni, the defendant is son of Satya Narain and so the plaintiff and defendant are real cousins to each other and both were nephews of their Bua Smt. Murta Devi; that Smt. Murta Devi executed a will deed on 8.11.1972 in favour of defendant Ram Niwas and upon her death on 15.11.1972 the house in suit devolved on the defendant on the basis of above will deed; that since Smt. Murta Devi had executed a will deed of house in suit in favour of Ram Niwas, her husband did not inherit any rights and title in the house in suit and so by the execution of alleged will deed by Ram Kishun in favour of plaintiff, which he did not get any rights or interests in the house in suit; that since Ram Kishun did not inherit and was not owner of the house in suit he was not competent to execute will deed in respect of the house and the same is null and void. 3. 3. After framing the issues and recording the evidence of parties, the trial Court IInd Additional Munsif, Gorakhpur came to the conclusion that Smt. Murta Devi had executed a will deed in favour of defendant and on her death, the defendant became owner of the house in suit and holding that the plaintiff is not owner of the house in suit on the basis of will deed dated 27.12.1972 dismissed the suit of plaintiff for possession. Feeling aggrieved, the plaintiff filed Civil Appeal No. 384 of 1986 before District Judge, Gorakhpur and the 1st Additional Civil Judge, Gorakhpur, allowed the same setting aside the judgment and decree passed by trial Court regarding dismissal of suit and decreed the suit of plaintiff for the relief of ejectment of defendant and possession with costs. Feeling aggrieved, the defendant has preferred this appeal. 4. The appeal has been admitted on following substantial question of law framed by this Court on 16.5.1988 : “whether the will dated 8.11.1972 was proved in accordance with Sections 74 and 63 of the Succession Act and also whether the lower appellate Court was justified in not examining the document itself and finding as to whether it was genuine or not.” Heard Sri H.K. Singh, learned Senior counsel assisted by Sri Vineet Kumar, learned counsel for the appellant and Sri K. Ajit, learned counsel for the respondent. 5. 5. Learned counsel for the appellant contends that learned trial Court had analysed the evidence on record correctly and apart from the rival reports of Hand Writing and Finger Print Experts, upon examining the original thumb impressions at his own with the help of magnifying glass, he came to the conclusion and recorded finding that the will deed dated 8.11.1972 bears the thumb impressions of Smt. Murta Devi (deceased); that it is proved from the evidence on record that will deed dated 8.11.1972 in favour of defendant has been duly proved in accordance with the requirements of Section 68 of Evidence Act by one of the two marginal witnesses; that the will deed dated 8.11.1972 has been executed in accordance with the provisions of Sections 63 and 74 of Indian Succession Act; that learned appellate Court has acted wrongly in recording the arguments of plaintiff-appellant in several pages and in disbelieving the will deed dated 8.11.1972 in favour of defendant without making proper analysis of the evidence on record and without giving any reasoning; that the findings of first appellate Court in disbelieving the will deed of defendant, paper No. 188-C in view of order passed during pendency of Second Appeal No. 1707 of 1966 in proceedings under Order XXII Rule 5 C.P.C. arisen out of Civil Suit No. 950 of 1964 are wrong, incorrect, erroneous and self-contradictory; that the first appellate Court has failed to examine the thumb impressions in dispute at his own and without displacing the findings recorded by the trial Court on the basis of self-examination of thumb impressions, has acted wrongly in setting aside the decree passed by trial Court and in allowing the appeal; that the plaintiff-respondent has not sought any relief for cancellation of will deed dated 8.11.1972 in favour of defendant or for adjudging the above will deed null and void; that the plaintiff has failed to prove his case and the first appellate Court has acted wrongly in relying on his case; that the suit of plaintiff is liable to be dismissed with costs. 6. 6. Per contra, learned counsel for the plaintiff-respondent contended that the judgment and decree passed by first appellate Court are sound on facts and law; that the judgment and decree passed by trial Court dismissing suit was based on surmises and conjectures; that it was fully proved from the evidence on record as well as the report of Handwriting and Fingerprint Expert Sri R.K. Jaiswal, based on scientific and microscopic examination of disputed and admitted thumb impressions of Murta Devi deceased, duly proved by R.K. Jaiswal as P.W.-3, that the disputed thumb impression over alleged will deed dated 8.11.1972 marked as D is blurred while admitted thumb impressions A-2 and A-3 were totally blurred and were incapable of any comparison; that the Fingerprint Expert has proved that there was difference in number of ridges between Delta and Core in disputed thumb impression marked D and admitted thumb impression marked A-1; that the trial Court acted wrongly in coming to the conclusion that thumb impression over will deed dated 8.11.1972 was of Smt. Murta Devi particularly in view of the fact that admitted thumb impressions A-2 and A-3 were totally blurred and are incapable of any comparison; that perusal of will deed dated 8.11.1972 makes it crystal clear that the alleged thumb impression of Smt. Murta Devi over the unregistered will deed is blurred and even with the help of magnifying glass the ridges of disputed thumb impression may not be correctly studied or compared with admitted thumb impressions which too have been found to be blurred by both the finger print experts; that according to the defence case Smt. Murta Devi was willing to execute a will deed in favour of defendant in respect of house in suit since 1966 but it could not be executed due to litigation in respect of house in suit and so the alleged execution of unregistered will deed by her on 8.11.1972, on falling ill, pending the second appeal is is doubtful, and creates strong suspicion over the execution of alleged will deed by her; that according to para 26 of written statement Smt. Murta Devi was ill but the will deed does not state so and it appears that Smt. Murta Devi was not in a position to execute a will deed on 8.11.1972 because of serious illness due to which she died on 15.11.1972; that the alleged will deed dated 8.11.1972 does not bear the thumb impressions of Smt. Murta Devi and there is no necessity for plaintiff-respondent to get the alleged will deed cancelled or declared null and void; that the burden to prove the genuineness and execution of will deed dated 8.11.1972 lies on propounder of will deed i.e. on the defendant; that actually Smt. Murta Devi did not execute any will deed in favour of defendant and the defendant did not get any rights or title over the property in suit on the basis of alleged will deed; that Smt. Murta Devi died intestate and all her properties were inherited by her sole heir and legal representative, Ram Kishun, her husband; that in proceedings arisen out of Civil Suit No. 950 of 1964 “Smt. Murta Devi v. Gama”, pending Second Appeal No. 1707 of 1966, upon death of Smt. Murta Devi on 15.11.1972, her husband Ram Kishun moved an application for substitution on 2.2.1973 and upon death of Ram Kishun on 5.11.1973, plaintiff-respondent Ramesh Chandra moved an application on 7.1.1974 for substituting him as his legal representative on the basis of will deed dated 27.11.1972; that after a period of almost one year from the death of Smt. Murta Devi and more than one month from the death of Sri Ram Kishun, the defendant moved an application seeking his substitution on the basis of alleged forged and unregistered will deed dated 8.11.1972; that on moving of rival applications by parties for substitution in place of Smt. Murta Devi, this Court framed two questions regarding the genuineness of two rival will deeds and sent it to trial Court for findings; that the trial Court after recording the evidence and hearing the parties came to the conclusion that Smt. Murta Devi did not execute any will deed on 8.11.1972 in favour of defendant-appellant and recorded a finding as to genuineness of will deed dated 27.12.1972 executed by Ram Kishun in favour of plaintiff-respondent; that the above findings were confirmed by this Court in Second Appeal No. 1707 of 1966 in which disbelieving and rejecting the claim of defendant-appellant for substitution on the basis of alleged will deed in question dated 8.11.1972 the plaintiff-respondent was substituted on the basis of registered will deed dated 27.12.1972; that the findings with regard to will deed dated 8.11.1972 to be forged or invalid, given in Second Appeal No. 10707 of 1966 has a binding effect on the appellant and in absence of any cogent evidence to the contrary the above will deed may not be adjudged a genuine or having been executed by Smt. Murta Devi by this Court; that the substantial questions of law, on which the appeal was admitted on 16.5.1988, without notice to the plaintiff-respondent, do not arise in the present appeal and only factual issues have been raised by giving them the shape of substantial questions of law. 7. As per admitted facts on record, the property in suit belonged to Smt. Murta Devi wife of Sri Ram Kishun, who died issue-less. Smt. Murta Devi had two brothers Triveni and Satya Narain and while plaintiff Ramesh Chandra is son of Triveni, defendant Ram Niwas is son of Satya Narain and so the plaintiff and defendant are real cousin brothers to each other and are real nephews of Smt. Murta Devi being sons of her two brothers. Virtually this is a fight between two cousin brothers over the property of their real Bua. It is also not disputed that Smt. Murta Devi died on 15.11.1972 and her husband Ram Kishun died on 5.11.1973. 8. According to the plaint case on death of Smt. Murta Devi the property in suit was inherited by her husband Ram Kishun, who executed a will deed in favour of plaintiff on 27.12.1972 and on death of Ram Kishun on 5.11.1973 on the basis of will deed dated 27.12.1972 the plaintiff became rightful owner in possession of the house in suit, while on the other hand according to the case of defendant Smt. Murta Devi had executed a will deed in his favour on 8.11.1972 and on her death on 15.11.1972 the house in suit devolved on him under the will deed dated 8.11.1972. 9. The plaintiff has not admitted execution of will deed dated 8.11.1972 by Smt. Murta Devi in favour of defendant Ram Niwas and similarly defendant has denied execution of will deed dated 27.12.1972 by Ram Kishun in favour of plaintiff Ramesh Chandra. It is also the case of defendant that since on death of Smt. Murta Devi on 15.11.1972, he became lawful owner in possession of the house in suit on the basis of will deed dated 8.11.1972, Sri Ram Kishun, husband of Smt. Murta Devi did neither inherit the house in suit nor became owner in possession thereof and so the execution of will deed by him in favour of plaintiff Ramesh Chandra is only a sham transaction, on the basis of which no right or title was ever passed to Ramesh Chandra as the will deed is null and void. 10. 10. It has been pleaded by defendant in the written statement that in a portion of house in suit, Gama was tenant and since he committed default in payment of rent, Smt. Murta Devi filed Civil Suit No. 950 of 1964 in the Court of Munsif, Gorakhpur for his ejectment in which the defendant used to do pairavi for and on behalf of Smt. Murta Devi and her husband Ram Kishun, who were old persons and in that case Second Appeal No. 1707 of 1966 is pending before the High Court. It has also been stated that in the year 1966 Smt. Murta Devi executed a registered will deed of her dwelling house in favour of plaintiff and assured the defendant for execution of will deed in his favour in respect of the house in dispute. It has further been stated that in the year 1972 Smt. Murta Devi fell ill and also her husband Ram Kishun and due to her illness, she executed the impugned will deed dated 8.11.1972 in favour of defendant with the consent of her husband. It is pertinent to mention that in above mentioned Second Appeal No. 1707 of 1966 “Smt. Murta Devi v. Gama”, wherein defendant-appellant was doing pairavi on behalf of Smt. Murta Devi, upon her death on 15.11.1972 an application for substitution was moved by her husband Sri Ram Kishun on 2.2.1973 and on death of Ram Kishun, the plaintiff-respondent Ramesh Chandra Gupta moved application for his substitution on the basis of registered will deed dated 27.11.1972 executed by Ram Kishun in his favour. That thereafter on 7.12.1973 after a period of almost one year from the death of Smt. Murta Devi and more than one month from the death of Ram Kishun, the defendant-appellant also moved an application seeking his substitution on the basis of alleged unregistered will deed dated 8.11.1972. 11. Since there were rival candidates for getting themselves substituted in place of appellant Smt. Murta Devi (deceased), this Court framed two issues (i) whether Smt. Murta Devi executed any will deed in favour of Ram Niwas Gupta and (ii) whether Ram Kishun executed any will deed in favour of Ramesh Chandra Gupta and remitted the issues for finding by the trial Court. On remittance of such issues, the trial Court afforded opportunity of evidence and hearing to both the parties and upon detailed analysis of evidence on record, decided issue No. 1 in negative against the defendant-appellant Ram Niwas Gupta holding that Smt. Murta Devi did not execute any will deed in his favour, and decided the issue No. 2 in affirmative holding that the will deed was executed by Ram Kishun in favour of Ramesh Chandra Gupta, the plaintiff-respondent. In his order dated 20.12.1975 recording the findings as above, the trial Court held that the will deed Paper No. 94-Ka relied by Ram Niwas Gupta is unregistered and out of its two attesting witnesses Harish Chandra Agrahari and Govind Lal Sharma, Harish Chandra Agrahari has been examined who is related to the defendant-appellant Ram Niwas while the other attesting witness Govind Lal Sharma is tenant of defendant and they are not independent persons. It also considered the other circumstances with regard to registered sale-deed and registered will deed, earlier executed by Smt. Murta Devi in respect of other properties and the execution of alleged unregistered will deed was found under very suspicious circumstances. On returning the findings so recorded by the trial Court in compliance of the remittance order, this Court after hearing the parties counsel passed order on 29.8.1977 holding that trial Court has given good and convincing reasons for recording the findings and confirming the findings of Court below it held that after death of Smt. Murta Devi the disputed property devolved on Ram Kishun and on his death it devolved upon Ramesh Chandra Gupta, the plaintiff-respondent. The above order of High Court is final and is not said to have been challenged before or set-aside by the superior Court. 12. The learned counsel for appellant submitted that the findings of first appellate Court disbelieving the will deed dated 8.11.1972 without examining himself, the thumb impressions of Smt. Murta Devi on the will deed dated 8.11.1972 (which were examined by the trial Court with magnifying glass) are wrong in view of the fact that in discussions over issue Nos. 12. The learned counsel for appellant submitted that the findings of first appellate Court disbelieving the will deed dated 8.11.1972 without examining himself, the thumb impressions of Smt. Murta Devi on the will deed dated 8.11.1972 (which were examined by the trial Court with magnifying glass) are wrong in view of the fact that in discussions over issue Nos. 2, 6 and 14 at one place the arguments of plaintiff-respondent, “that the findings given in Civil Suit No. 950 of 1964 having been confirmed by the High Court operates as res judicata” has been rejected, while on the other hand in the concluding para on above issues, in view of findings in Second Appeal No. 1707 of 1966 the will deed dated 8.11.1972 has been held to be a forged document, which findings are self-contradictory and so also the judgment and decree passed by first appellate Court are liable to be set-aside. 13. The arguments of defendant-appellant on above two counts, have no force because Istly the perusal of impugned will deed dated 8.11.1972 shows that the disputed thumb impression of Smt. Murta Devi over marked by ‘D’ it is blurred and her admitted thumb impressions marked by A-2 and A-3 are totally blurred and incapable of comparison with each other. In the circumstances, when the ridges of the thumb impressions are not clear, the points of similarities upon comparison between in the thumb impressions ‘D’ and ‘A-2, 3’ may not be specified or indicated. Even if the patterns of two thumb impressions are similar, it does not mean that both the thumb impressions belong to one and the same person. The science of finger prints says that even in case of one or two dissimilarities between the two thumb impressions, it can safely be said that the thumb impressions are of different persons. The expert report 179/C submitted and proved by P.W.-3 states that thumb impression A-2 and A-3 are totally blurred while ‘D’ and ‘A-1 are partly blurred and while there are 19 intervening ridges between core and left Delta in disputed thumb impression marked by D, there are 32 intervening ridges between above two points in admitted thumb impression A-1 which makes it clear that the two thumb impressions do not belong to one and the same person. The thumb impression ‘D’ has not been compared with ‘A-1’ as in report 179/C rather report 181/C submitted and proved by defendant’s witness, showing 6 points of similarities between D and A-2, the opinion of their belonging to one person has been given. The above opinion may not be accepted because thumb impression A-2 has been found totally blurred and defendant’s expert avoided to compare ‘D’ with ‘A-1’ due to dissimilarities between the two by saying that the thumb impressions A-1 and A-3 were totally blurred. The mere mention by the trial Court that he examined the disputed and admitted thumb impressions himself with the help of magnifying glass has no meaning because the dissimilarities in thumb impressions may not be examined by naked eyes or even through magnifying glass, without scientific and microscopic examination upon enlargement of photos of the thumb impressions and, 14. IIndly as far as the findings dated 20.12.1975 by trial Court in Civil Suit No. 950 of 1964 and its confirmation by High Court on 29.8.1977 in Second Appeal No. 1707 of 1966 is concerned, it is noteworthy that issues framed by High Court were not decided summarily rather were decided upon recording the evidence. It is also noteworthy that Harish Chandra Agrahari, the attesting witness of the will deed, who was produced as witness to prove the will deed in question in Civil Suit No. 950 of 1964, was again produced as D.W.-2 in this case in order to prove the same will deed in present Civil Suit No. 342 of 1974 and neither the other attesting witness of the will deed was produced nor any plausible reason for not producing him was assigned. Since Harish Chandra Agrahari has been disbelieved by the Courts, the defendant-appellant could have produced the other attesting witness but he did not do so. It is not disputed that Smt. Murta Devi had executed a registered will deed and sale-deed in respect of her other properties prior to the execution of disputed will deed, so there could be no justification for her to execute an unregistered will deed on 8.11.1972 in favour of the defendant-appellant. It is not disputed that Smt. Murta Devi had executed a registered will deed and sale-deed in respect of her other properties prior to the execution of disputed will deed, so there could be no justification for her to execute an unregistered will deed on 8.11.1972 in favour of the defendant-appellant. It is also noteworthy that as per pleadings in written statement Smt. Murta Devi had assured the defendant-appellant of execution of will deed in his favour since 1966 (when a registered will deed was executed in respect of her dwelling house in favour of plaintiff-respondent) but the same could not be executed due to litigation. But alleged execution of will pending litigation upon her falling ill itself creates doubts. As per averments made in para 26 of written statement the will was executed during illness of both Smt. Murta Devi and her husband Ram Kishun, but there is no whisper of their illness in the disputed will deed, which further strengthens the suspicion and indicates that the unregistered will deed is forged and fictitious. The impugned will deed does not speak that at the time of execution of will deed Smt. Murta Devi was ill and non-mentioning of this fact in the will deed also makes the execution of will deed doubtful. Moreover the will deed was allegedly executed by Smt. Murta Devi in consultation with and in presence of her husband but the will deed neither bears the signatures of Sri Ram Kishun nor contains any averments with regard to the alleged consultation with her husband. Both the marginal/attesting witnesses of will deed are also interested persons and scribe of the will deed who could have been an independent witness has also not been produced. 15. Both the marginal/attesting witnesses of will deed are also interested persons and scribe of the will deed who could have been an independent witness has also not been produced. 15. It is pertinent to mention that according to defendant/respondent he was doing pairavi in Original Suit No. 950 of 1964 “Smt. Murta Devi v. Sri Gama”, and on the point of moving of substitution application by him with inordinate delay in Second Appeal No. 1707 of 1966, after a period of almost one year from the death of Smt. Murta Devi and over one month from the death of Ram Kishun, the defendant/appellant had taken a plea in above case that he had sent Ram Kishun for moving application for substitution of his name in place of Smt. Murta Devi, but instead of substitution of Ram Niwas he moved application for substitution of his own name. The above contention is contradictory to the pleadings of defendant/respondent wherein he has stated that he used to do pairavi on behalf of old Smt. Murta Devi and Ram Kishun. 16. Undoubtedly an order passed under proceedings of Order XXII Rule 5 C.P.C. does not operate as res judicata, but I find force in the arguments advanced by plaintiff/respondent that the findings recorded in Civil Suit No. 950 of 1964 regarding non-execution of any will deed by Smt. Murta Devi between the same parties having been confirmed by this Court in Second Appeal No. 1707 of 1966, may not be ignored and in absence of any reliable and cogent evidence to the contrary, there can be no justification for arriving at some other conclusion, holding the unregistered will deed dated 8.11.1972 to be genuine and valid, upon the same evidence, been reproduced by defendant/respondent in this case between the same parties. 17. In view of the discussions made above, I find that the defendant/appellant has failed to prove by any reliable and cogent evidence, that the disputed unregistered will deed was executed by Smt. Murta Devi on 8.11.1972 and has failed to show that the findings arrived at in Civil Suit No. 950 of 1964 and Second Appeal No. 1707 of 1966 holding that Smt. Murta Devi did not execute any will deed in favour of the defendant Ram Niwas on 8.11.1972, were wrong and incorrect. The defendant-appellant has failed to show that the learned first appellate Court has committed any mistake in disbelieving the unregistered will deed dated 8.11.1972 set up by defendant in his defence, irrespective of the findings in Civil Suit No. 950 of 1964. 18. As far as the execution of registered will deed by Ram Kishun in favour of the plaintiff-respondent is concerned, the findings recorded by first appellate Court are not alleged to be based on misreading of evidence or suffering from any manifest error or perversity. 19. I am of the considered view that the defendant-appellant has failed to prove the execution of unregistered will deed dated 8.11.1972 by Smt. Murta Devi in favour of defendant/respondent Ram Niwas, in accordance with law and provisions of Sections 63 and 74 of Indian Succession Act and has also failed to prove her thumb impressions over it. The substantial question of law as framed is answered accordingly. 20. In view of the discussions made above, I have come to the conclusion that the appellant has failed to show any illegality or incorrectness in the impugned judgment and decree passed by first appellate Court in Civil Appeal No. 384 of 1986 on 22.4.1988 and there is no sufficient ground for interfering with or setting it aside the impugned judgment and decree. The appeal has got no force and is liable to be dismissed with costs. 21. The appeal is dismissed with costs. 22. Interim order, if any, stands discharged. 23. The lower Court record be transmitted back to Court below with a copy of this order. ——————