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Himachal Pradesh High Court · body

2016 DIGILAW 1970 (HP)

Kuldeep Chand v. Bhagi Rath

2016-09-14

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. This appeal has been filed by the appellants/defendants (hereinafter referred to as ‘defendants’) against the judgment passed by the Court of learned Additional District Judge, Ghumarwin, District Bilaspur, in Civil Appeal No. 46/13 of 2004/2000, dated 12.04.2006, vide which, learned Appellate Court while rejecting the appeal so filed by the defendant-appellant has upheld the judgment and decree passed by the Court of learned Sub Judge 1st Class, Ghumarwin, in Civil Suit No. 125/1 of 1991, dated 29.12.1999. 2. This appeal was admitted on 18.12.1006 on the following substantial question of law: “Whether the two Courts below have committed serious illegality in dismissing the plea of the appellants/defendants that late Punu Ram had executed a Will in their favour on the grounds that the original Will has been with-held, when the original Will is on record and one witness, namely DW-3 Bali Ram has specifically stated that the Will was Ext. DW-4/A, though it is a different matter that the Will is not so marked?” 3. Brief facts necessary for the adjudication of this case are that respondent/plaintiff (hereinafter referred to as ‘plaintiff’) filed a suit for possession of the suit land on the pleadings that one Shri Punnu Ram son of Shri Mali was owner of land comprised in Khata Khatauni No. 30/38, Khasra Nos. 34, 42, 47, 142, 153, 155, 160 and 169, measuring 16.18 bighas, situated in village Kharota, Pargana Sunhani, Tehsil Ghumarwin, District Bilaspur, H.P which property was succeeded by plaintiff after the death of Punnu Ram, who died on 15.08.1989. As per the plaintiff, Punnu Ram was his real maternal uncle and plaintiff was the sole successor to the property of deceased Punnu. According to the plaintiff, last rites of Punnu after his death were also performed by him as he had started living in the house of deceased and also was looking after the management of the land of Shri Punnu. According to the plaintiff, defendants were interfering in the property of deceased Punnu on the pretext that Punnu had made a ‘Will’ in their name and they had also forcibly taken possession of the suit land as well as house from the plaintiff on 20.01.1991 with the help of police. According to the plaintiff, defendants were interfering in the property of deceased Punnu on the pretext that Punnu had made a ‘Will’ in their name and they had also forcibly taken possession of the suit land as well as house from the plaintiff on 20.01.1991 with the help of police. Further as per the plaintiff, defendants had no right, title or interest over the suit land and Shri Punnu had executed no ‘Will’ in favour of defendants and the order which had been passed by Sub Registrar, Ghumarwin, District Bilaspur, vide which it has ordered that the ‘Will’ be registered, was illegal, wrong, null and void. On these bases, the plaintiff filed the suit praying for decree of possession of the suit land. 4. Defendants in the written statement filed by them denied the claim of the plaintiff. According to them, the plaintiff had not succeeded to the property of deceased Punnu Ram and in fact, it were the defendants who had succeeded the deceased Punnu Ram by virtue of ‘Will’ dated 30.07.1989 which was duly executed by Punnu Ram in their favour. According to the defendants, they were looking after deceased Punnu during his lifetime and also used to cultivate his land. 5. On the basis of pleadings of the parties, learned trial Court framed the following issues:- “1.Whether the plaintiff is entitled to the possession of the suit land? OPP. 2. Whether Sh. Punnu, executed a valid Will dated 15-8-1990 in favour of defendants? OPD. 3. Whether the plaintiff is estopped to file the suit by his acts, conducts, omissions and commissions? OPD. 4. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD. 5. Whether this court has no jurisdiction to hear and decide the suit? OPD 1-A.Whether the suit is not maintainable? OPD 2-A.Whether plaintiff has no locus standi to file the present suit? OPD 3-A.Whether plaintiff has no cause of action? OPD 6. Relief.” 6. On the basis of evidence led by the parties both ocular as well as documentary in support of their respective cases, the issues so framed were answered by the learned trial Court in the following manner:- “Issue No.1 : Yes. OPD 3-A.Whether plaintiff has no cause of action? OPD 6. Relief.” 6. On the basis of evidence led by the parties both ocular as well as documentary in support of their respective cases, the issues so framed were answered by the learned trial Court in the following manner:- “Issue No.1 : Yes. Issue No. 2 : No. Issue No. 3 : No. Issue No.4 : No. Issue No.5 : No. Issue No. 1-A :No. Issue No. 2-A. :No. Issue No. 3-A. :No. Relief :The suit of the plaintiff is decreed as per operative part of the judgment.” 7. Accordingly, learned trial Court decreed the suit of the plaintiff for possession against the defendants in respect of land measuring 16.18 bighas i.e. the suit property and it directed the defendants to hand over vacant possession of the suit land within three months to the plaintiff. 8. Issue No. 2 framed by the learned trial Court was to the effect that “whether Shri Punuu, executed a valid Will dated 15.8.1990 in favour of defendants?”, which issue was decided alongwith Issue No. 1 by the learned trial Court, which issue was to the effect that “whether the plaintiff is entitled to the possession of the suit land?”. 9. Learned trial Court while holding that plaintiff was entitled to the possession of the suit land also held that Shri Punnu Ram had not executed any valid ‘Will’ dated 15.8.1990 in favour of defendants. While disbelieving the ‘Will’ propounded by the defendants, learned trial Court held that Sohan Singh Thakur who had entered the witness box as DW-2 and who was stated to be scribe of the ‘Will, had deposed that he was practicing as an Advocate at Ghumarwin for the year 1981 to 1993 and Ext. DW-2/A was the copy of the original ‘Will’ scribed by him. Learned trial Court took note of the fact that the exhibition of the said document was objected by learned counsel for the plaintiff and from this it was deciphered by the learned trial Court that the original ‘Will’ was not produced by the defendants in the Court at the time when statement of DW-2 Sohan Singh Thakur was recorded in the Court and the copy of same was sought to be exhibited. Learned trial Court further held that said document could not have been exhibited without placing on record the original ‘Will’. Learned trial Court further held that said document could not have been exhibited without placing on record the original ‘Will’. It was further held by learned trial Court that no application for leading secondary evidence was moved by the defendants and as per the provisions of Section 64 of the Indian Evidence Act, documents must be proved by primary evidence except in the cases mentioned therein and for leading secondary evidence as was envisaged in Section 65 of the Indian Evidence Act conditions mentioned therein are required to be fulfilled. Learned trial Court went on to hold that although the original ‘Will’ was later on produced by the defendants, but the same had not been exhibited in the Court and was exhibited as Ext. PW-2/A by the Sub Registrar and therefore, fact remained that the ‘Will’ in issue had not been exhibited before the learned trial Court during the course of trial. It was further held by learned trial Court that defendants had moved an application under Order 18, Rule 17-A praying that defendants be allowed to recall all the D.Ws already examined in the Court to prove the ‘Will’ and after due consideration, the application was dismissed by learned trial Court on 23.12.1997. It further went on to hold that similar application was also rejected by the learned trial Court earlier vide order dated 09.02.1995. As per learned trial Court, these applications were moved by the defendants at belated stage when the case was fixed for final arguments. Learned trial Court further concluded that in the case in hand, none of the conditions for leading secondary evidence were fulfilled by the defendants. It further held that in the written statement submitted by the defendants it was submitted that “original will” was produced during the course of proceedings before the learned trial Court, however, said contention of the learned counsel for defendants was found to be totally wrong as there was no record to this effect on the case file, which could show and prove that the original ‘Will’ was produced in the Court, when statements of witnesses of the defendants were recorded. It was held by learned trial Court that original ‘Will’ was not put to DW3 Bali Ram and DW5 Nand Lal. It was held by learned trial Court that original ‘Will’ was not put to DW3 Bali Ram and DW5 Nand Lal. On these bases learned trial Court returned the finding that “original Will” was not proved on record by the defendants as per the provisions of Section 64 and 65 of the Indian Evidence Act and the contentions regarding the valid execution of the ‘Will’ were rejected by learned trial Court. 10. It is pertinent to mention here that in para 19 of the judgment passed by learned trial Court, it is mentioned that original ‘Will’ was later on produced by the defendants but the same was not exhibited in the Court. The findings returned in this regard are quoted herein below: “19. Although the original will was later on produced by the defendants, but the same has not been exhibited in the Court and is exhibited as Ex.PW-2/A by the Sub-Registrar. Therefore, fact remains that the will has not been exhibited in this Court during the course of trial of this case.” 11. Learned Appellate Court in its judgment held that the onus to prove that Punnu had executed a valid ‘Will’ dated 30.07.1989 in their favour was heavily upon the defendants but defendants had not produced the original ‘Will’ at the time when evidence was adduced. Accordingly, learned Appellate Court held that the original ‘Will’ was not proved in accordance with law. It further held that Ext. 2/A was the photocopy of original ‘Will’, therefore, same cannot be read in evidence as the same was secondary evidence. On these bases, learned Appellate Court held that it was correctly held by learned trial Court that defendants had failed to prove execution of ‘Will’ by Punnu Ram. Learned Appellate Court further held that perusal of the record demonstrated that statements of witnesses Kuldeep Singh and scribe Sohan Singh were recorded on 17.1.1995 and on the said date Sh. On these bases, learned Appellate Court held that it was correctly held by learned trial Court that defendants had failed to prove execution of ‘Will’ by Punnu Ram. Learned Appellate Court further held that perusal of the record demonstrated that statements of witnesses Kuldeep Singh and scribe Sohan Singh were recorded on 17.1.1995 and on the said date Sh. D.K. Sharma, was appointed as Local Commissioner to record the statements of attesting witness Nand Lal and trial Court specifically directed vide order dated 17.1.1995 that the original file of the case be handed over to Local Commissioner i.e. D.K. Sharma but in the meantime, defendants on 19.1.1995 moved application under Order 13 Rule 2 CPC for allowing them to produce the original ‘Will’ dated 30.7.1989 alongwith other documents before examining the witnesses and the application so filed was allowed vide order dated 24.1.1995 subject to costs of Rs. 100/-. Learned Appellate Court further held that despite the fact that application under Order 13, Rule 2 CPC was allowed, defendants failed to produce the original ‘Will’ before the learned trial Court as well as before the Local Commissioner who while recording the statement of attesting witness Nand Lal on 29.1.1995 observed before recording statement of Nand Lal that the original ‘Will’ was not on record. Learned Appellate Court further held that the evidence of defendants was closed on 01.02.1995 and thereafter defendants moved application for leading additional evidence which was dismissed on 9.2.1995 and revision petitioned filed against order of dismissal dated 9.2.1995 was allowed by High Court vide order dated 21.7.1995 and defendants were allowed to examine five witnesses subject to cost of Rs. 150/-. Thereafter, statements of DW3 Bali Ram and DW4 Rameshwar were recorded on 18.3.1996 and evidence of defendants was closed. Thereafter again defendant moved an application under Order 18, Rule 17-A CPC for adducing additional evidence which was opposed by the plaintiff and said application was dismissed on 18.3.1996. Learned Appellate Court further held that pursuant to order passed by the High Court dated 21.7.1995, defendants were allowed to adduce five witnesses and defendants examined only DW3 Bali Ram and DW-4 Rameshwar but failed to produce original ‘Will’ the ‘Will’ at the time of examination of these witnesses. Learned Appellate Court further held that pursuant to order passed by the High Court dated 21.7.1995, defendants were allowed to adduce five witnesses and defendants examined only DW3 Bali Ram and DW-4 Rameshwar but failed to produce original ‘Will’ the ‘Will’ at the time of examination of these witnesses. Learned Appellate Court held that it appeared that the original ‘Will’ was produced by the defendants alongwith their application under Order 18, Rule 17 CPC which was moved after evidence of defendants was closed. On these bases, it was held by learned Appellate Court that it was apparent that original ‘Will’ was in possession of the defendants but they failed to produce it before the learned trial Court. Accordingly, it was held by learned Appellate Court that the defendants were not vigilant when they adduced their evidence. Learned Appellate Court further held that the ‘Will’ in issued was not refused by the learned trial Court from being admitted in evidence and it were the defendants in whose possession the ‘Will’ in issue was, but they did not exercise due diligence at the time of adducing their evidence. It is further held by learned Appellate Court that provisions of Order 41, Rule 27 CPC was not meant to help a sleeping litigant. On these bases, learned Appellate Court also rejected the plea of the appellants therein to lead additional evidence. On the said findings, learned Appellate Court went on to uphold the judgment and decree passed by learned trial Court and the appeal filed against the said judgment and decree was accordingly dismissed. 12. Mr. Ajay Kumar, learned Senior Counsel appearing for the appellants argued that the judgments and decrees passed by both the learned Courts below were not sustainable as both the learned Courts below had committed serious illegality in dismissing the plea of the appellants that late Punnu Ram in fact had executed a ‘Will’ in favour of defendants and said ‘Will’ was never withheld by the defendants as one of the defendant’s witness namely DW3 Bali Ram had specifically stated that the original ‘Will’ was available on the record of the learned trial Court and the same was referred to him as Ext. DW4/A, though according to Mr. Ajay Kumar, it was a different matter that the original ‘Will’ on record was not so marked. According to Mr. DW4/A, though according to Mr. Ajay Kumar, it was a different matter that the original ‘Will’ on record was not so marked. According to Mr. Ajay Kumar, the conclusion arrived at by both the learned Courts below to the effect that the original ‘Will’ was not produced on record by the defendants at the time of examination of their witnesses was totally perverse. As per the learned senior counsel, the original ‘Will’ was already placed on record by the defendants before the statements of defence witnesses were recorded and this was apparent from the statement of DW3 Bali Ram. According to Mr. Ajay Kumar, said perversity in the findings returned by both the learned Courts below rendered the said judgments as non est and according to Mr. Ajay Kumar, the judgments and decrees passed by the learned Courts below are liable to be set aside on this count only. 13. On the other hand, Mr. Dilip Sharma, learned Senior Counsel appearing for the respondent argued that there was neither any perversity nor any infirmity with the findings which have been returned by both the learned Courts below to the effect that the defendants had not produced the original ‘Will’ at the time when the statements of defence witnesses were recorded. Mr. Sharma vehemently argued that in fact it was explicitly explained both in judgment passed by learned trial Court as well as judgment passed by learned Appellate Court that despite ample opportunities having been granted to the defendants, they failed to place on record of the learned trial Court the original ‘Will’ purportedly executed in their favour by Punnu Ram. According to Mr. Sharma, the findings so returned by both the learned Courts below were based on records of the case. Mr. Sharma further submitted that a perusal of the judgment passed by the learned Appellate Court demonstrated that during the pendency of the appeal, defendants had also filed an application to lead additional application under Order 41, Rule 27 CPC which was also and rightly so dismissed by the learned Appellate Court. According to Mr. Mr. Sharma further submitted that a perusal of the judgment passed by the learned Appellate Court demonstrated that during the pendency of the appeal, defendants had also filed an application to lead additional application under Order 41, Rule 27 CPC which was also and rightly so dismissed by the learned Appellate Court. According to Mr. Sharma had the original ‘Will’ been on the records of the learned trial Court before the testimony of defence witnesses was recorded then there was no occasion for the defendants to have had filed the application either before learned trial Court under Order 18, Rule 17 CPC or before the learned Appellate Court under Order 41, Rule 27 CPC. On these bases, it was submitted by Mr. Sharma that there was no merit in the appeal and same is liable to be dismissed. 14. I have heard the learned counsel for the parties and also gone through the records of the case as well as the judgments passed by both the learned Courts below. 15. The issue for adjudication before this Court is in a very narrow compass. It is to be adjudicated by this Court as to whether the findings returned by the learned Courts below to the effect that defendants had failed to place on record of the learned trial Court the original ‘Will’ at the time when defendant’s witnesses were examined are correct or whether the contention of the appellants before this Court that the original ‘Will’ was on record at the time of deposition of defendant’s witnesses and this was apparent from the testimony of DW3 is correct. 16. Before proceeding further, it is necessary to take note of the fact that learned trial Court in its judgment retuned the finding that though original ‘Will’ was later on produced by the defendants but the same was not exhibited in the Court. It is evident from the records of the case that statement of DW2 Sohan Singh was recorded on 17.1.1995. This witness deposed in the Court that ‘Will’ was scribed on 30.07.1989. At page 87 of the paper book, there is one ‘Will’ dated 30th July, 1989. This ‘Will’ is a two page document which bears the signatures of Punnu Ram, the alleged testator of the said ‘Will’ and two witnesses namely Bali Ram and Nand Lal. As per said ‘Will’, it was scribed by Shri S.S. Thakur, Advocate. At page 87 of the paper book, there is one ‘Will’ dated 30th July, 1989. This ‘Will’ is a two page document which bears the signatures of Punnu Ram, the alleged testator of the said ‘Will’ and two witnesses namely Bali Ram and Nand Lal. As per said ‘Will’, it was scribed by Shri S.S. Thakur, Advocate. This ‘Will’ also stands duly registered before the Sub Registrar on 15.7.1992. 17. At page 78 of the learned trial Court’s case file there is a photocopy of the said ‘Will’. Photocopy of ‘Will’ dated 30.07.1989 as well as the original ‘Will’ bears the stamp of Sub Judge 1st Class, Ghumarwin, District Bilaspur, H.P. On the photocopy of the said ‘Will’ which is at page 78 of the paper book, on the first page Ext. 2/A is written in red ink. Signature of Shri S.S. Thakur are encircled and marked as mark Y, whereas signatures of testator Punnu Ram were encircled in red ink and marked as mark X. Similarly ‘Will’ which is at page 87, also bears one stamp of Sub Judge 1st Class, Ghumarwin, District Bilaspur on its first page and two such stamps on its second page. In the original ‘Will’, signatures of Bali Ram, attesting witness are encircled in red ink and marked as mark X, whereas signatures of other witnesses Nand Lal are encircled in red ink and are marked as mark Y. However, below mark X and mark Y, “Sub Registrar” is written in the same ink i.e. red and in the same hand. As per learned senior counsel appearing for the appellants, the factum of original ‘Will’ being on record has been proved by the testimony of DW3. Shri Bali Ram, one of the attesting witness of the ‘Will’ in issue, has entered the witnesses box as DW3. A perusal of his testimony demonstrates that in his examination in chief he has deposed “Punnu ke Dastkhat vasiyat Ext. DW4/A par hai. Phir maine bhee vasiyat par daskhat bataur gawah keye”. One thing which is apparent from a perusal of the testimony of DW3 is that neither he identified the signatures of Punnu on any particular document on the court file nor there is any document on the court file which has been marked as Ext. DW4/A. According to Mr. Phir maine bhee vasiyat par daskhat bataur gawah keye”. One thing which is apparent from a perusal of the testimony of DW3 is that neither he identified the signatures of Punnu on any particular document on the court file nor there is any document on the court file which has been marked as Ext. DW4/A. According to Mr. Ajay Kumar in fact the “original Will” which is at page 87 of the trial Court’s record which was put to DW-3 when the said witness was examined, however, by mistake, the same could not be exhibited as a document. 18. Statement of DW3 Bali Ram was recorded on 18.3.1996. It is a matter of record that there were two applications filed by the defendants before the learned trial Court under Order 18, Rule 17 to lead additional evidence. The application later on filed under Order 18, Rule 17 dated 24.9.1997 is at page 107 of the trial Court’s case file which was rejected by the learned trial Court. A perusal of the averments made in the said application demonstrate that it was mentioned therein that the case in issue was listed on 24.9.1997 (the date on which said application was filed) and at the time of recording statement of the said witness, the original ‘Will’ was lying on the record but by mistake the original ‘Will’ was not exhibited by the Court and resultantly photocopy of the ‘Will’ was exhibited by the Court. On these bases, it was contended in that application that it was necessary in the interest of justice that D.Ws. be recalled and reexamined to prove the ‘Will’. In my considered view, if the contention of the learned senior counsel appearing for the appellants is to be believed that the original ‘Will’ which was on the record of the trial Court was duly proved by DW3 but erroneously the same was wrongly marked then the averments which have been made in the application which was filed by the defendants under Order 18, Rule 17 dated 24.9.1997 were wrong and incorrect vide which application, prayer for recalling and re-examining the defendant’s witnesses was made to prove the ‘Will’ in issue on the ground that the original ‘Will’ which was lying in the Court, by mistake was not exhibited and resultantly photostate copy of same ‘Will’ got exhibited. 19. 19. It is evident from the averments which were made in the application filed under Order 18 Rule 17 CPC dated 24.9.1997 that by way of recalling D.Ws, defendants intended to prove original ‘Will’ dated 30.07.1989, whereas the ‘Will’ which was exhibited earlier was the photocopy i.e. Ext. 2/A, which is at pages 78 and 79 of the paper book. 20. Besides the factum of a photocopy having been exhibited on record being substantiated by the averments made in the application filed under Order 18, Rule17, this is also substantiated from the fact that in the photocopy of the said ‘Will’ stamp of Sub Judge 1st Class, Ghumarwin, District Bilaspur is affixed below where the said document has been exhibited as Ext. 2/A as well as below where signatures of Shri S.S. Thakur, Advocate, were encircled in red ink and marked as mark Y and signatures of testator of the ‘Will’ Punnu Ram were encircled in red ink and marked as mark Y. 21. In my considered view, whereas on one hand, the testimony of DW3 nowhere leads us to the conclusion that original ‘Will’ was ever put to him, on the other hand, the averments made in the application filed by the defendants under Order 18, Rule 17 CPC dated 24.9.1997 categorically proves and demonstrates that till the date of filing of the said application, the original ‘Will’ had not been exhibited. Therefore, in this background, in my considered view, there is no merit in the contention of learned counsel for the appellant that despite the fact that the original ‘Will’ was lying on the records of the learned trial Court and it was put to DW-3, both the learned Courts below had erroneously concluded that the said ‘Will’ had not been proved on record. 22. Further, a perusal of the averments made in the application which was filed during the pendency of first appeal by the present appellants before the first Appellate Court under Order 41, Rule 27 CPC demonstrates that the reasons which were given therein by the present appellants to allow them to produce additional evidence was that defendants had produced Bali Ram and Sohan Singh as their witnesses in support of ‘Will’ but due to negligence of the counsel and the mistake of learned lower Court the “original Will” could not be properly marked as Exhibit on the records of the learned lower Court. 23. 23. In my considered view, averments made in the application which was filed under Order 41, Rule 27 CPC to the effect that the “original Will” could not interalia be properly marked as an exhibit due to the mistake of learned lower Court was a very serious allegation leveled by the appellants. It is a matter of record that the application filed under Order 18, Rule 17 CPC dated 24.9.1997 before the learned trial Court was dismissed by the learned trial Court vide order dated 23.12.1997. This order attained finality. During the pendency of suit before the learned trial Court, present appellants had also moved an application under Order 13, Rule 2 CPC for production of ‘Will’ dated 30.07.1989 which was registered in the office of Sub Registrar, Ghumarwin on 8.6.1992. By way of said application, the prayer which was made by the appellants therein was that the defendants may be allowed to produce original ‘Will’ dated 30.07.1989 along with other documents before examining the witnesses. However, there is nothing on record to substantiate as to how and when the original ‘Will’ was in fact placed on record by the defendants. There is no list of documents filed alongwith the “original Will” and incidentally, though there is stamp of Sub Judge 1st Class on the “original Will” but there is no signature of Presiding Officer on the same. These facts create serious suspicion on the mode and manner in which the “original Will” in fact was placed on record by the defendants. During the course of arguments also, learned counsel for the appellants could not point out from either any document on record or any order passed by the learned trial Court as to on which date and in what manner, the original ‘Will’ in fact was placed on record. 24. The testimony of Nand Lal (DW5) was recorded on 29.1.1995 and this witness has deposed in his examination in chief that if “original Will” is shown to him then he can identify his signatures as well as the signatures of Punnu Ram and the marginal witnesses. This demonstrates that at the time when this witness was examined, the “original Will” was not shown to him. If on that date, the “original Will” was on record then it is not understood as to what prevented the defendants from showing the said “original Will” to DW5. 25. This demonstrates that at the time when this witness was examined, the “original Will” was not shown to him. If on that date, the “original Will” was on record then it is not understood as to what prevented the defendants from showing the said “original Will” to DW5. 25. Another important aspect of the matter is that defendants earlier also filed an application under Order 18, Rule 17 CPC to recall witnesses for the purpose of re-examination which application is at page 95 of the learned trial Court’s case file. This application is dated 1.2.1995 and it was averred in the said application that the case was fixed for 01.02.1995 itself and witnesses had already been examined on photostate copy of ‘Will’ dated 30.07.1989 which was pending for the purpose of registration in the office of Sub Registrar, Ghumarwin and therefore, this necessitated the recall of witnesses as additional evidence to prove the original ‘Will’ which was later on submitted in the aforesaid case. Though, this application was dismissed by the learned trial Court, however, defendants were permitted to examine D.Ws by this Court and accordingly, on 18.3.1996, DW3 Bali Ram and DW4 Rameshwar were examined by the defendants. A perusal of the testimony of these witnesses also does not demonstrate that the original ‘Will’ in fact was put to them on 18.03.1996. 26. As I have already mentioned above that thereafter another application was filed under Order 18, Rule 17 CPC by the defendants to recall defendants witnesses to prove the ‘Will’ which was rejected. It is pertinent to mention that reply which was filed by the plaintiffs to the subsequent application filed by the defendants under Order 18, Rule 17 CPC demonstrates that it was the categorical stand of the plaintiffs in the said reply that the original ‘Will’ was not on record and thus there was no question to recall defendant’s witnesses again. 27. All the above facts, in my considered view, point towards one fact only that the original ‘Will’ was not on record when the defendants witnesses were examined on various dates and the original ‘Will’ was subsequently introduced in the records of the learned trial Court by the defendants. 27. All the above facts, in my considered view, point towards one fact only that the original ‘Will’ was not on record when the defendants witnesses were examined on various dates and the original ‘Will’ was subsequently introduced in the records of the learned trial Court by the defendants. The contention of the learned counsel for the appellants that the factum of the original ‘Will’ being on record was substantiated by the testimony of DW3 Bali Ram, is neither convincing nor the same is borne out from the records of the case. On the other hand, the findings returned by both the learned Courts below to the effect that the original ‘Will’ in fact was not placed on record by the defendants at the time when defendants witnesses were examined are neither perverse nor it can be said that the findings so returned by both the learned Courts below are contrary to the records. The substantial question of law is answered accordingly. In view of the findings returned above, as there is no merit in the appeal, the same is dismissed with costs, so also pending miscellaneous applications, if any.