JUDGMENT : Goutam Bhaduri, J. 1. Since both the appeals are arising out of same judgment and decree dated 31-10-2019 passed by the District Judge, Rajnandgaon, in civil suit No.35-A/2014 they are being heard and decided together by this common judgment. 2. FA No.64 of 2020 is preferred by the plaintiffs on the ground that the counter claim was barred by time whereas FA No.506 of 2019 is preferred by the defendant No.1 challenging the judgment and decree dated 31-10-2019 passed by the District Judge, Rajnandgaon, in civil suit No.35-A/2014. 3. (i) Plaintiffs namely; Inderchand Kothari, Shashikant Kothari and Santosh Kumar Kothari are the brothers and the defendant No.1 namely; Nirmalchand Kothari is the son of Umedchand Kothari, who is the brother of the plaintiffs. The father of the plaintiffs namely; Poonamchand Kothari died on 28-1-1991 and mother namely; Rajkanwar Bai Kothari died on 7-1-2011. The plaintiffs have other brothers & sisters and the sisters were married. (ii) According to the plaintiffs, during the lifetime of their father, the oral partition took place on 4-11-1964 and in such partition late Rajkanwar Bai, the mother of the plaintiffs, got the house situated at Hamalpara, which is in nazul land recorded in Nazul Sheet No.47-B, plot 212 & 213 admeasuring 81 & 556 sq.mtr. in total 637 sq.mtr. and other agricultural lands. The property details of late Rajkanwar Bai were shown in schedule A & B of the plaint. After death of Rajkanwar Bai the plaintiff No.3 Santosh filed an application for mutation in respect of the suit land on 23-1-2011on the ground that as per will executed on 26-7- 1995, the property be transferred in his name. Defendant No.1 Nirmalchand filed a written objection on 20-7-2011 and produced the will dated 28-1-2003 stating that subsequently the property was bequeathed in his favour. Defendant No.1 Nirmalchand filed a written objection on 20-7-2011 and produced the will dated 28-1-2003 stating that subsequently the property was bequeathed in his favour. (iii) The plaintiffs stated that the father of the defendant No.1 namely; Umedchand, who is the brother of the plaintiffs, had not maintained the cordial relation with his mother late Rajkanwar Bai and she was not happy with his behaviour and during her ailment also they did not take care of her and used to insult her, therefore, expressing her displeasure she on her own wrote a letter on 2-2- 1993, which was got typed on 14-12-2008, and on 26-7-1995 before the witnesses she executed a will and the entire movable and immovable properties were bequeathed in favour of the plaintiffs namely; Inderchand, Shashikant and Santosh Kumar along with grandson Arpan and respective wives of plaintiffs No.2 & 3 namely; Pushpalata & Sunita. Therefore, the declaration was sought for that they are the beneficiary of the will executed by late Rajkanwar Bai. The said will was got registered on 26-7-1995 and the immovable properties were also gifted. She died on 7-1- 2011 and till her death the plaintiffs being the sons used to take care of the welfare of Rajkanwar Bai. (iv) It was further pleaded by the plaintiffs that certain immovable properties were also sold by late Rajkanwar Bai, but the records were not corrected, therefore, before the Tahsildar, Rajnandgaon, all the three plaintiffs filed an application dated 25- 3-2011 that as per the will their names be mutated in respect of the agricultural land admeasuring 25.33 acres at village Lakholi in different shares. On such application of mutation, the defendant No.1 filed an objection dated 20-7-2011 and also produced the will dated 28-1-2003. The plaintiffs claimed that the subsequent will dated 28-1-2003 was fabricated and forged. The criminal cases were also filed between the parties, which are pending. The plaintiffs stated that the defendant No.1 would try to interfere with peaceful possession of the properties, which were bequeathed in their favour, as such, declaration and permanent injunction was sought for that on the basis of forged will dated 28-1-2003 the defendant No.1 would not get any right or title and, in fact, as per the will dated 26-7-1995 the plaintiffs would be entitled in respect of the property described in schedule A & B of the plaint. 4. 4. The defendant No.1 refuted the plaint allegations and counter claim was also made. It was stated that his father namely; Umedchand had cordial relation with his mother late Rajkanwar Bai and even if any will was executed on 26-7-1995 the same would loose its efficacy as by subsequent will dated 28-1-2003 the grandson i.e. defendant No.1 was given the entire property. It was stated that during the lifetime of Rajkanwar Bai her entire care was being taken by defendant No.1 and his family members and after death of Rajkanwar Bai, the plaintiffs have forcefully occupied the property, which is against the interest of the defendant No.1. It was further stated that the criminal cases were also filed against the defendant wherein he got clear acquittal and as per subsequent will dated 28-1-2003 Rajkanwar Bai executed a will in favour of defendant No.1, therefore, he is the absolute owner of the property bequeathed under the will. It was also stated that the will dated 26-7-1995 is a nullity and instead the plaintiffs be restrained from interfering with the possession in respect of the property under the will. 5. The plaintiffs also filed the written statement of the counter claim and refuted all the averments and stated that they are in possession of the suit property and were paying the tax etc. Since the counter claim was filed on the subsequent date, the claim was barred under the law of limitation. 6. On the basis of pleadings, the learned trial Court framed as many as eight issues and decreed the suit and held that Rajkanwar Bai has executed the will in favour of the plaintiffs on 26-7-1995. It was further held that the will dated 28-1-2003, produced by the defendant No.1, was not proved thereby the property has devolved on to the plaintiffs. With respect to counter claim about the limitation, the finding was given as not proved to be barred by limitation. Hence these two appeals. One (FA No.64 of 2020) is preferred by the plaintiffs and another (FA No.506 of 2019) is preferred by the defendant No.1. 7. With respect to counter claim about the limitation, the finding was given as not proved to be barred by limitation. Hence these two appeals. One (FA No.64 of 2020) is preferred by the plaintiffs and another (FA No.506 of 2019) is preferred by the defendant No.1. 7. (a) Shri Manoj Paranjape, learned counsel appearing for the defendant No.1 (Appellant in FA 506 of 2019), would submit that the suit was filed on 18-7-2014 and after the suit is filed, when the written statement was filed, the counter claim was preferred which is under Order 8 Rule 9 of the Code of Civil Procedure, 1908 (henceforth ‘the CPC’). He would submit that the counter claim filed after the notice of plaint when the written statement was filed by time and the finding of the learned trial Court that the cause of action arose on 18-7-2014 would be correct as on 20-7-2011 no suit was filed against the defendant, therefore, filing of counter claim do not arise prior to that. He would also submit that written statement with counter claim having been filed, it was very much within time of filing of suit under Article 58 of the Limitation Act, 1963. (b) Learned counsel would further submit that applications were filed by the plaintiff No.3 & 2 Santosh & Shashikant respectively on 9-2-2011 (Ex.P/6 & Ex.P/7) for mutation of name and the order sheet (Ex.P/8) would show that earlier before the Revenue authorities the proceeding was pending. With respect to possession of the property, learned counsel would submit that the property was that of Rajkanwar Bai and if the will is negated the defendant No.1 would also be a co-owner and even if the plaintiffs are in possession, the possession of the co-owner is held to be possession for other co-owners. In support of his contention, he would place reliance upon the decisions rendered by the Supreme Court in the matters of Karbalal Begum v Mohd. Sayeed and Another, (1980) 4 SCC 396 and Darshan Singh and Others v Gujjar Singh (Dead) by LRs. and Others, (2002) 2 SCC 62 . (c) Learned counsel would submit that two wills came before the Court. One is of 26-7-1995 and another is of 28-1-2003. Sayeed and Another, (1980) 4 SCC 396 and Darshan Singh and Others v Gujjar Singh (Dead) by LRs. and Others, (2002) 2 SCC 62 . (c) Learned counsel would submit that two wills came before the Court. One is of 26-7-1995 and another is of 28-1-2003. He would submit that after the evidence of the plaintiff, the defendant had already filed affidavits of five persons thereby the examination-in-chief was already adduced by Order 18 Rule 4 of the CPC, however, the trial Court did not provide any chance to cross-examine the witnesses and this order having been challenged before the High Court of Chhattisgarh in WP 227 No.786 of 2019, by order dated 6-11-2019 the Court disposed of the petition with liberty to take all the grounds in the appeal, which is permitted under Section 105 of the CPC. The said illegality is being challenged in this appeal. (d) According to the learned counsel, the trial Court simplicitor denied the evidence adduced by the defendant on the ground that they have not filed the list of witnesses under Order 16 Rule 1 of the CPC. Referring to the decisions rendered by the Supreme Court in the matters of Vidhyadhar v Manikrao and Another (1999) 3 SCC 573 and Lalitha J. Rai v Aithappa Rai, (1995) 4 SCC 244 , learned counsel would submit that non filing of the list of witnesses would not be fatal and the defendant could have examined the witnesses without their name having been given in the list under Order 16 Rule 1 of the CPC. He would submit that the cross-examination having not been allowed, the defendant has suffered serious prejudice as the attesting witnesses could not be examined. He placed reliance upon the decision rendered by the Supreme Court in the matter of Ayaaubkhan Noorkhan Pathan v State of Maharashtra and Others (2013) 4 SCC 465 . He would submit that the cross-examination having not been allowed, the defendant has suffered serious prejudice as the attesting witnesses could not be examined. He placed reliance upon the decision rendered by the Supreme Court in the matter of Ayaaubkhan Noorkhan Pathan v State of Maharashtra and Others (2013) 4 SCC 465 . Learned counsel would submit that the statement of attesting witness, which was adduced to prove the will dated 26-7-1995, contradictory statement of PW-2 Balchand Parakh has come on record and the statement would show that he was not the attesting witness and in respect of PW-3 Smt. Sushila, who has proved Ex.P/28 the letter expressing her desire, it has not been properly proved that Rajkanwar Bai had expressed her agony and displeasure over the family of Umendchand, one of the son, through whom the defendant No.1 was claiming the property. (e) With respect to the proof of will, learned counsel would submit that the will having not been proved and the opportunity has not been given to the defendant, the impugned judgment and decree is liable to be set aside. To buttress his contention, learned counsel would place reliance upon the decision rendered by this Court in the matter of Shrimati Geeta Bai (dead) through LRs Sudhir Bajaj & Others v Ramavatar Agrawal & Another FA No.186 of 2013 (decided on 3-8-2022). 8. (A) Shri Sunil Otwani, learned counsel appearing for the plaintiffs, per contra, would submit that the issues were framed on 25-2-2016 and on that day itself direction was issued by the trial Court that if the parties are interested, they may file application under Order 16 Rule 1 of the CPC. Learned counsel would refer to various provisions of Rule 1, 1 (3) and 1A of the CPC and reliance was placed upon the decision rendered by the Supreme Court in the matter of Mange Ram v Brij Mohan and Others (1983) 4 SCC 36 to submit that despite reminder given by the Court, the defendant deliberately avoided to lead any evidence. (B) Learned counsel would submit that on 5-10-2019 the defendant stated that the witnesses are outside beyond reach of jurisdiction for which he was given the time and subsequently when on 10-10-2019 the affidavit under Order 18 Rule 4 was filed no witness was present in the Court, therefore, the defendant himself failed to bring the witnesses. (B) Learned counsel would submit that on 5-10-2019 the defendant stated that the witnesses are outside beyond reach of jurisdiction for which he was given the time and subsequently when on 10-10-2019 the affidavit under Order 18 Rule 4 was filed no witness was present in the Court, therefore, the defendant himself failed to bring the witnesses. He would submit that on 15-10-2019 and 16-10-2019 the prayer was made that he is medically indisposed and bedridden, therefore, could not come and the date was sought for whereas the document filed along with reply to the application under Order 39 Rule 1 & 2 before the High Court would show that on 16-10-2019 the defendant very much visited the High Court, which would be evident from Gate Pass, which contains his photograph. Learned counsel would submit that false affidavit was filed before the Court to get a date and if such falsity is given liberal approach, it would lead to loose faith in the system. (C) Referring to the decision rendered by the Supreme Court in the matter of Shiv Cotex v Tirgun Auto Plast Private Limited and Others, (2011) 9 SCC 678 , learned counsel would submit that the conduct of the defendant would show that unnecessary adjournments were claimed on the falsity and by preparation of false documents for which a separate proceeding to take cognizance was initiated before the Judicial Magistrate, however, because of pendency of this appeal nothing has transpired. He would submit that, prima facie, the document would show that the will was created for the reason that the relation between Rajkanwar Bai and Umendchand was not cordial as the suit was filed by the defendant No.1 against his own father and Ex.P/28 wherein late Rajkanwar Bai recorded her memories has disclosed the kind of behaviour was meted out to her, which is proved by one of her daughter namely; Sushila (PW-3) . (D) Learned counsel would submit that according to the defendant, 28-1-2003 was the death anniversary of Poonamchand and on that day the subsequent will was said to have been executed by his wife Rajkanwar. On that date the other family members were also present and no one has stated so and further according to DW-1 he received the will by post and for the first time knowledge of WILL came into being. On that date the other family members were also present and no one has stated so and further according to DW-1 he received the will by post and for the first time knowledge of WILL came into being. It is stated that these facts were disclosed in the affidavit under Order 18 Rule 4 of the CPC and no pleading has been made, therefore, the said part of evidence cannot be looked into for want to pleading. By placing reliance upon the decision rendered by the Supreme Court in the matter of Ram Sarup Gupta (dead) by LRs v Bishun Narain Inter College and Others AIR 1987 SC 1242 , learned counsel would submit that the counter claim was barred by time as the objection as per Ex.P/13 & Ex.P/14 was taken on 20-7-2011 by the defendant No.1 thereby the knowledge of will came to them and counter claim was filed on 19-11-2015, which is beyond three years and as per Article 58 the said counter claim was barred by time, therefore, the appeal of the plaintiffs be allowed with a finding that the counter claim is barred by time. 9. We have heard learned counsel appearing for the parties and perused the record. 10. Before going into the merits of the case, as per the arguments advanced, it would be necessary for us to go through the order sheets of the trial Court. Before this Court in FA No.506 of 2019, which is filed by defendant No.1 Nirmalchand Kothari an application under Order 39 Rule 1 & 2 of the CPC was filed. In the meanwhile, an adjournment application was filed by the defendant on 16-10-2019 before the trial Court along with the affidavit of Nalin. Perusal of the application under Order 17 Rule 1 of the CPC before the trial court, it is evident that the defendant sought for adjournment on the ground that as per the Doctor’s advise, Nirmalchand Kothari is taking bed rest and he is not able to come to the Court and because of weakness he is confined to bed and is unable to come out. According to the defendant, he got ill on 14-10-2019 and the said fact was informed to the counsel and in support of illness, affidavit of Nalin was filed. 11. According to the defendant, he got ill on 14-10-2019 and the said fact was informed to the counsel and in support of illness, affidavit of Nalin was filed. 11. Perusal of the order sheet of the trial Court would show that on 16-10-2019 the application under Order 17 Rule 1 of the CPC was moved by the defendant. At that juncture, the plaintiff objected to it stating that the defendant had gone to Bilaspur to file certain petition. Along with reply to application under Order 39 Rule 1 & 2 read with Section 151 CPC, Annexure – R/4, the Gate Pass issued by the High Court of Chhattisgarh dated 16-10-2019 bearing No.201910027919 has been filed, which shows that Nirmalchand, S/o Umendchand got a Gate Pass to enter into the High Court. The purpose is shown as ‘civil matter’ ¼nhokuh eSVj½ ; This document has not been denied. The same is obtained under the Right to Information Act, 2005 by plaintiff from the High Court of Chharttisgarh. Thus, prima facie, it is crystal clear that the defendant No.1 made a false statement on affidavit that he is bed ridden and could not come before the trial Court to give evidence. 12. Perusal of the order sheet further would show that the trial Court upon direction given by the High Court to dispose of the case within a stipulated time tried to dispose of the suit. Reference is found in the order passed by this Court in MCC No.847 of 2019 decided on 19-9-2019 wherein it was directed to dispose of the case as early as possible. Copy of one of the order dated 29-10- 2018 passed in WP 227 No.923 of 2018 is also produced wherein this Court directed to conclude the civil suit expeditiously preferably within a period of six months from the date of receipt of the certified copy of the order. Certainly that was not carried out, therefore, the question looms large as to whether when such false averments are made by the litigant before the Court with all proposition to support such cause of affidavit, which is, prima facie, negated by his travel from Rajnandgaon to Bilaspur can be given an incentive. Certainly, the answer would be no. Certainly that was not carried out, therefore, the question looms large as to whether when such false averments are made by the litigant before the Court with all proposition to support such cause of affidavit, which is, prima facie, negated by his travel from Rajnandgaon to Bilaspur can be given an incentive. Certainly, the answer would be no. In such cases if the statement of defendant is accepted then in such case, it would lead to demoralising the trial Court and will amount to deliberately ignoring the false fact to shelve it. 13. Be that as it may, in order to find out the conduct, state of affairs and how the trial went on, we went through the entire order sheets of the trial Court. The proceedings of the said order sheets are as follows : Date Particulars 18-7-2014 The suit was filed. 25-2-2016 Issues were framed. The parties were directed to look into the provisions of Order 16 Rule 1 & 3 of the CPC and it was observed that if they want to lead evidence, they may positively file list of witnesses otherwise it would be at their peril to produce the witnesses. 10-9-2018 The plaintiffs were directed to keep their witnesses present on the next day so that their cross-examination can be completed and defendant No.1 was directed to file statement of witnesses under Order 18 Rule 4 of the CPC before 3-10-2018 which was the next date so that the witnesses of defendant can be crossexamined. 3-10-2018 The plaintiffs and their witnesses were present. The defendant moved an application under Order 17 Rule 1 of the CPC on the ground that because of certain ailment of his daughter he has come to Raipur. The Court observed that for some reason or the other since the defendant was avoiding that was not proper and the defendant counsel was asked to get a suitable date and accordingly, the date was given to their evidence and the matter was fixed for 26-10-2018. 26-10-2018 The plaintiffs appeared, but again the date was sought for by the counsel and on the request of the defendant date was fixed for 3-11-2018. 3-11-2018 Because of Diwali Holidays the case was fixed for 13-11-2018. 26-10-2018 The plaintiffs appeared, but again the date was sought for by the counsel and on the request of the defendant date was fixed for 3-11-2018. 3-11-2018 Because of Diwali Holidays the case was fixed for 13-11-2018. 13-11-2018 Copy of the order passed by the High Court of Chhattisgarh was filed and the plaintiffs filed an application not to give any adjournment to the defendant, however, request was made by the counsel for the defendant for adjournment on the ground that he is unable to cross-examine the witness, as the new counsel was appointed. The order sheet further records that as per the direction of the High Court the case was to be concluded within six months. However, because of non-cooperation of the defendant and his counsel, the plaintiff could not be crossexamined. The case was fixed for 3-12-2018. 3-12-2018 The counsel for the defendant again failed to cross-examine the witnesses on the ground that he was engaged for the last 2-3 hearings, as such the date was adjourned to 17-12-2018 for crossexamination of the plaintiff witnesses. 17-12-2018 Plaintiff Inderchand was present and requested for cross-examination. At that moment, an application under Order 11 Rule 11 read with Section 151 of the CPC was filed by the defendant and the order would show that till 4.50 pm counsel did not appear for cross-examination, as he was busy in conducting other case. The District Judge perforce fixed the matter for 2-1- 2019 with an observation that after the winter vacation the case was fixed for hearing on application under Order 11 Rule 11 CPC. The case thereafter was adjourned to various dates. 10-1-2019 From this order sheet it is manifest that the case first fixed for evidence on 7-11-2017 and thereafter, 4-5 opportunities were afforded to the defendant to cross-examine the witnesses. He used to change the counsel frequently and despite the fact that the examination-in-chief was already filed in 2017, the cross-examination could not be done and cost was imposed. It was observed that day-to-day hearing continued and no unnecessary adjournments would be granted. The case was fixed for 13-2-2019. 13-2-2019 Plaintiff Inderchand was not fully crossexamined and after half cross-examination he was discharged due to paucity of time. Thereafter, the case was fixed on 25-2-2019. It was observed that day-to-day hearing continued and no unnecessary adjournments would be granted. The case was fixed for 13-2-2019. 13-2-2019 Plaintiff Inderchand was not fully crossexamined and after half cross-examination he was discharged due to paucity of time. Thereafter, the case was fixed on 25-2-2019. 25-2-2019 The plaintiff witness was present, but he was discharged on the request of counsel for the defendant that he was busy in other case, therefore, next date was fixed for 13-3-2019. 13-3-2019 The plaintiff again could not be fully crossexamined on the request of counsel for the defendant that he was busy in other case before the SDO and other Courts and the case was fixed for evidence on 6-4-2019. 6-4-2019 The plaintiff witness appeared, but the counsel for the defendant sought adjournment that he could not cross-examine as he was suffering from fever. The next date was fixed for 25-4-2019. 25-4-2019 The plaintiff appeared and the cross-examination could not be concluded because of paucity of time. Again case was fixed for 13-5-2019. 13-5-2019 The cross-examination could not be concluded. Again the matter was adjourned. It was further observed that since there is a direction of the High Court to conclude the proceeding within a stipulated time, after the summer vacation the case was fixed. 21-6-2019 Counsel for the defendant appeared and prayed for time on the ground that because of International Day of Yoga (June 21) he was busy and could not go through the case, therefore, he could not cross-examine the witnesses and stated that he would cross-examine the witness on the next day. Thus, the case was fixed for 22-6- 2019. 22-6-2019 The plaintiff witness was present and again date was sought by the counsel for the defendant that he is busy in other Court, which was opposed on the ground that as seven days have passed, but cross-examination has not been concluded. The date further was given to 24-6-2019. 24-6-2019 Plaintiff Inderchand was cross-examined and discharged and the cross-examination of other witness Balchand Parakh was started, however, due to bereavement in the family the date was adjourned and the case was fixed for 5-7-2019. 5-7-2019 Plaintiff witness Balchand Parakh appeared and after some time the counsel for the defendant sought for time to complete the crossexamination of Balchand Parakh. The date was fixed for 12-7-2019. 12-7-2019 The plaintiff and the witness were present. 5-7-2019 Plaintiff witness Balchand Parakh appeared and after some time the counsel for the defendant sought for time to complete the crossexamination of Balchand Parakh. The date was fixed for 12-7-2019. 12-7-2019 The plaintiff and the witness were present. The case was adjourned because of transfer of Judge. Thereafter, the case was fixed for 3-8-2019. 3-8-2019 Balchand Parakh was cross-examined and discharged. The next date was fixed for 13-8- 2019. 13-8-2019 An application was filed by the plaintiff to decide the preliminary issue. The Court observed that the same shall be decided subsequently. In the intervening period some dates have passed. 12-9-2019 PW-3 Sushila was cross-examined and discharged. Plaintiff closed his evidence. The defendant sought for time to adduce evidence. The Court directed the defendant that on the next day he should keep his witness present and shall file his statement under Order 18 Rule 4 CPC along with necessary documents. Case was fixed for 25-9-2019. 25-9-2019 An application was filed by the plaintiff counsel under Order 18 Rule 17 read with Section 151 CPC for which the reply was sought for. On that date neither the defendants witnesses were present nor the application under Order 18 Rule 4 was filed. 4-10-2019 An application was filed by the plaintiff that by inadvertence during the examination exhibition of one document was left out, therefore, the said document was sought to be exhibited. The Court allowed the same on the ground that it was a technical mistake. Inderchand was examined, cross-examined and discharged. The case was fixed for defendant evidence on 5-10-2019. 5-10-2019 An application under Order 17 Rule 1 CPC was filed on the ground that the defendant has returned from Bangalore on 4-10-2019 and because of paucity of time, the statement under Order 18 Rule 4 CPC could not be filed and other witnesses are from West Bengal and Uttar Pradesh they could not come to Rajnandgaon, therefore, one more date should be given. The Court observed that on 10-9-2018 the defendant was permitted to place the affidavit under Order 18 Rule 4, however, since on that date the plaintiff evidence was not completed and the application under Order 17 Rule 1 was allowed and the defendant was permitted to file the affidavit under Order 18 Rule 4 CPC and shall also keep the witnesses present on the next date, which was given 10-10-2019. 10-10-2019 The defendant filed the affidavit under Order 18 Rule 4 CPC of six persons. The order sheet of 10-10-2019 does not show that they were present. An application under Order 16 Rule 1 read with Section 151 CPC was filed by the plaintiff. The case was fixed for 11-10-2019. 11-10-2019 Reply to the application under Order 16 Rule 1 read with Section 151 CPC was filed. 14-10-2019 Trial Court observed that since names of the witnesses were not shown in application under Order 16 Rule 1 CPC, therefore, defendant alone would be entitled to examine himself. 14. At this juncture, it would be relevant to quote the provisions of Order 16 Rule 1 and 1A of the CPC, which reads as under : 1. List of witnesses and summons to witnesses.--(1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such person for their attendance in Court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such part shows sufficient cause for the omission to mention the name of such witness in the said list. (4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf. 1A. Production of witnesses without summons.--Subject to the provisions of sub-rule (3) of rule 1, any party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents. 15. 1A. Production of witnesses without summons.--Subject to the provisions of sub-rule (3) of rule 1, any party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents. 15. The Supreme Court in the matter of Mange Ram (supra) has held that where the party wants the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to file the list with the gist of evidence of witness in the Court as directed by sub-rule (1) of Rule 1 and make an application as provided by sub-rule (2) of Rule 1. But where the party would be in a position to produce its witnesses without the assistance of the Court, it can do so under Rule 1A of order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not. 16. In Vidhyadhar (supra) the Supreme Court held that it is open to a party to summon the witnesses to the Court or may, without applying for summons, bring the witnesses to give evidence or to produce documents. Sub-rule (3) of Rule 1 provides that although the name of a witness may not find place in the list of witnesses filed by a party in the Court, it may allow the party to produce a witness though he may not have been summoned through the Court. 17. Likewise, in the matter of Lalitha J. Rai (supra) while interpreting Rule 1 and 1A of Order 16 of the CPC, the Supreme Court held thus at paras 3 & 4 : 3) Order 16 Rules 1 and 1(A) adumberate that the witness at the trial court are to be produced for examination by the parties by their filing the list, and omission thereon prohibits them to avail the assistance of the court to secure their attendance to give evidence or to produce documents on their behalf. It is true that the legislature amended Order 16 Rule 1 and added rule 1(A) to see that the undue delay should not be caused in the trial of the suit by filing list of witnesses or the documents at belated stage. It is true that the legislature amended Order 16 Rule 1 and added rule 1(A) to see that the undue delay should not be caused in the trial of the suit by filing list of witnesses or the documents at belated stage. Thereby, it envisages that on or before the date fixed by the court for settlement of issues and not later than 15 days after the date on which issues were settled, the parties are to file the list of such witnesses whom they propose to call either to give evidence or to produce documents and they are required to obtain summons to such witnesses for their attendance in the court. On their failure to do the same, Rule 1(A) says that they may without assistance of the court bring witnesses to give evidence or to produce documents. In other words, if they fail to obtain the summonses through court for attendance of witnesses they are at liberty to have the witnesses brought without the assistance of the Court. 4) It would, thus, be seen that the legislature did not put a total prohibition on the party to produce the witnesses or the production of the documents for proof of the respective case. Nonetheless, when they seek the assistance of the Court, they are enjoined to give reasons as to why they have not filed the application within the time prescribed under Rule 1 of Order 16. It is seen that in the application it was stated by the husband of the appellant that they were under the bonafide impression that they have already filed the list of the witnesses alongwith the documents and that the mistake of non-filing the list was discovered when they were getting ready for the trial. It is not in dispute that the trial is yet to begin. In these circumstances, we think that the trial court committed illegality in refusing to receive the list for summoning the witnesses for adduction of evidence by the plaintiff. The appeal is accordingly allowed. The orders of the trial court and the High Court are set aside. The list already furnished is a valid list. The trial court is directed to summon the witnesses for examination on behalf of the plaintiff 18. The appeal is accordingly allowed. The orders of the trial court and the High Court are set aside. The list already furnished is a valid list. The trial court is directed to summon the witnesses for examination on behalf of the plaintiff 18. Conjoint reading of the aforesaid principles laid down by the Supreme Court, it shows that the party may bring a witness of his own in the Court. Admittedly, in this case no names have been given by the defendant No.1 with a list of witnesses. On the contrary, the defendant was initially directed on 12-9-2019 to keep the witnesses present. Thereafter, the order sheet of 4-10-2019 would show that again direction was given that the defendant shall keep his witness present and file his statement under Order 18 Rule 4 of the CPC. The case was fixed for 5-10-2019. On 5-10- 2019 the time was sought on the ground that the defendant has come from Bangalore and other witnesses are from West Bengal and Uttar Pradesh, therefore, could not come. However, the Court again directed to keep the witness present in person and file their statement under Order 18 Rule 4 of the CPC on 10-10-2019. The defendant or his witnesses did not appear. Their counsel only filed the statement under Order 18 Rule 4 CPC, but witnesses never appeared in person before the Court, therefore, the proposition which has been relied on by the defendant that in case the names of witnesses are not shown in the list as per Rule1A, the witnesses may be brought without assistance of the Court to give evidence or to produce documents in absence of presence of witness on date of evidence the defendant himself was negligent to adduce evidence . The defendant himself has not followed the mandate. If such mandate exists in the statute book and the direction has been issued from time to time by the High Court to decide a particular case within a stipulated time the conduct of the defendant cannot be appreciated at any time. 19. The defendant himself has not followed the mandate. If such mandate exists in the statute book and the direction has been issued from time to time by the High Court to decide a particular case within a stipulated time the conduct of the defendant cannot be appreciated at any time. 19. It is important to take note of how the proceedings took place before the trail Court wherein the plaintiff has produced the statement of witness under Order 18 Rule 4 on 17-11-2017 thereafter, the defendant has taken various adjournment for cross examining the plaintiff witness and after two years the crossexamination of plaintiff witness began on 13-2-2019 during this period the defendant has taken more than 15 adjournments for cross-examination of witness. 20. On 12-9-2019 the trial Court directed the defendant to make his witness present, but on six consecutive dates till 11-10-2019 the witnesses were not present before the Court and on 11-10-2019 an application under Order 16 Rule 1 was presented by the plaintiff which was subsequently allowed and the defendant’s opportunity to bring witness was closed. Even after that when the defendant was asked to present himself for cross-examination he tried to delay it by taking various adjournments citing his illness. The records of the proceedings shows that defendant has resorted into various tactics to delay the proceedings. The practice of taking unrestricted adjournments like this has been condemned by the Supreme Court. 21. The order sheet of 16-10-2019 wherein the defendant sought time for evidence that he is medically ill and the same is negated by the document filed by the plaintiff that the defendant was very much present in the High Court, who has travelled from Rajnandgaon to Bilaspur, it shows that the defendant tried to control the entire system which cannot be allowed at any cost and eventually he did not appear in person till 18-10-2019. 22. The Supreme Court in the matter of Shiv Cotex (supra) has specifically observed that no litigant has a right to abuse the procedure provided in the CPC and unnecessary adjournment has been deprecated. The Supreme Court further observed that the past conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. The Supreme Court held thus at paras 15, 16 & 17 : 15. The Supreme Court further observed that the past conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. The Supreme Court held thus at paras 15, 16 & 17 : 15. It is sad, but true, that the litigants seek—and the courts grant—adjournments at the drop of the hat. In the cases where the Judges are little proactive and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further. The case in hand is a case of such misplaced sympathy. It is high time that courts become sensitive to delays in justice delivery system and realise that adjournments do dent the efficacy of the judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The courts, particularly trial courts, must ensure that on every date of hearing, effective progress takes place in the suit. 16) No litigant has a right to abuse the procedure provided in the CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system. It is true that cap on adjournments to a party during the hearing of the suit provided in proviso to Order XVII Rule 1 CPC is not mandatory and in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but ordinarily the cap provided in the proviso to Order XVII Rule 1 CPC should be maintained. When we say justifiable cause' what we mean to say is, a cause which is not only ‘sufficient cause' as contemplated in sub-rule (1) of Order XVII CPC but a cause which makes the request for adjournment by a party during the hearing of the suit beyond three adjournments unavoidable and sort of a compelling necessity like sudden illness of the litigant or the witness or the lawyer; death in the family of any one of them; natural calamity like floods, earthquake, etc. in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on way to the court and such like cause. The list is only illustrative and not exhaustive. 17) However, the absence of the lawyer or his non-availability because of professional work in other court or elsewhere or on the ground of strike call or the change of a lawyer or the continuous illness of the lawyer (the party whom he represents must then make alternative arrangement well in advance) or similar grounds will not justify more than three adjournments to a party during the hearing of the suit. The past conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit - whether plaintiff or defendant - must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don't, they do so at their own peril. (Emphasis supplied) 23. Applying the aforesaid principles of law laid down by the Supreme Court to the facts of the present case, the conduct of the defendant would show that false averments were made before the Court and even did not hesitate to file an affidavit though he did not file list of witnesses, but when the opportunity was given to produce the witnesses in person he deliberately did not appear despite repeated opportunities given. Even the conduct of the defendant to cross-examine the witnesses cannot be ignored and accordingly, we are of the view that the closure of evidence of the defendant was justified specially in view of the conduct of the defendant. 24. The plaintiff would be at liberty if so advised, to avail the appropriate legal recourse in respect of filing of alleged affidavit by defendant No.1 before the trial Court at Rajnandgaon with regard to his illness on 16-10-2019, as the same is contradicted by presence of defendant No.1 Nirmalchand Kothari at the High Court of Chhattisgarh. 24. The plaintiff would be at liberty if so advised, to avail the appropriate legal recourse in respect of filing of alleged affidavit by defendant No.1 before the trial Court at Rajnandgaon with regard to his illness on 16-10-2019, as the same is contradicted by presence of defendant No.1 Nirmalchand Kothari at the High Court of Chhattisgarh. For such issue, the parties may resort to any other legal proceeding of complaint or otherwise since it may require elaborate evidence. 25. Now the other question which comes from the submission of the plaintiff that the counter claim was filed on 19-11-2015 and they came about knowledge of will when they made objection on 20-7- 2011 (Ex.P/13 & Ex.P./14). Article 58 of the Limitation Act, 1963 postulates the period of limitation to be three years when the right to sue first accrues. Perusal of the document Ex.P/13 & Ex.P./14 would show that it was in respect of mutation proceeding. The suit was filed by the plaintiffs on 18-7-2014. Certainly the counter claim can be made, which is governed by Order 8 Rule 6A of the CPC. Order 8 Rule 6A of the CPC postulates that a defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence, therefore, the right of counter claim can only be filed when the suit is filed and the defendant filed his written statement. The suit having been filed on 18-7-2014 the counter claim was filed on 19- 11-2015, therefore, on the simple application of Order 8 Rule 6A of the CPC, the counter claim cannot be held to be barred by time and it is held accordingly. 26. Now the question comes to fore about WILL. In order to assess the correctness of the Will, the Courts are required to resort to arm chair theory meaning thereby the Court is required to sit at the arm chair of the testator. 26. Now the question comes to fore about WILL. In order to assess the correctness of the Will, the Courts are required to resort to arm chair theory meaning thereby the Court is required to sit at the arm chair of the testator. This proposition has been laid down by the Supreme Court in Lakshmana Nadar v B. Ramier, AIR 1953 SC 304 further followed by Navneet Lal alias Rangi v Gokul AIR 1976 SC 794 . Further in Rajkumari v Surendra Pal Sharma, Civil Appeal No.9683 of 2019, it is held that the propounder in order to succeed the will as genuine, is required to prove by satisfactory evidence that (i) the will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had put his signature on the document of his own free will. Similar proposition has been laid down in Shivkumar v Sharanbasappa, (2021) 11 SCC 277 : 200 SCC OnLine SC 385 wherein the parameters have been laid down to test as to the circumstances which may give right to suspicious circumstances about the WILL in question. Para 12 reads thus : 12. For what has been noticed hereinabove, the relevant principles governing the adjudicatory process concerning proof of a Will could be broadly summarised as follows:– 12.1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon. 12.2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence. 12.3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. 12.3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will. 12.4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator. 12.5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter. 12.6. A circumstance is “suspicious” when it is not normal or is ‘not normally expected in a normal situation or is not expected of a normal person’. As put by this Court, the suspicious features must be ‘real, germane and valid’ and not merely the ‘fantasy of the doubting mind.’ 12.7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependents; an active or leading part in making of the Will by the beneficiary thereunder et-cetera are some of the circumstances which may give rise to suspicion. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependents; an active or leading part in making of the Will by the beneficiary thereunder et-cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation. 12.8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will? 12.9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.” 27. The Supreme Court in Shivkumar (supra) further held that the Will being a rather solemn document that comes into operation after death of the testator, special provisions are made in the statutes for making of a will and for its proof in a court of law. Section 59 of the Succession Act provides that every person of sound mind, not being a minor, may dispose of his property by will. Section 59 of the Succession Act provides that every person of sound mind, not being a minor, may dispose of his property by will. Explaining the provisions of Section 63 of the Succession Act, it is held that the will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person, and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. The Court also held that however, when the Will is surrounded by suspicious circumstances, the Court would expect that the legitimate suspicion should be removed before the document in question is accepted as the last Will of the testator. . 28. Now coming back to the facts of this case, the will was proved by the attesting witness PW-2 Balchand Parakh. He stated that on the request of Rajkanwar Bai, who executed the will 26-7-1995, he brought Gopal Prasad Sahu, the Document Writer, to her house and Gopal Prasad Sahu was explained about the entire property to whom it is to be given and thereafter in presence of all the beneficiaries, the will was executed and after reading the same signature was made. At that time the Sub Registrar from the Registry office was also present. Gopal Prasad Sahu had also signed the same. He stated that in the last 15 years of Rajkanwar Bai whenever he visited her house, he had not seen the defendant No.1 or his family members and stated that the relation between Rajkanwar Bai and Umedchand and his family members was not cordial and even on the death of Rajkanwar Bai they did not attend. This witness further made a statement that though he has read the subsequent will dated 28-1-2003 and all the signatories to the will are outside of Rajnandgaon and no one has visited Rajkanwar Bai at any point of time. This witness further made a statement that though he has read the subsequent will dated 28-1-2003 and all the signatories to the will are outside of Rajnandgaon and no one has visited Rajkanwar Bai at any point of time. He further stated that Rajkanwar Bai was socially applauded and was related to various organisations and if she wanted to execute the will, she would have called any one and she was being looked after by the plaintiffs. The plaintiff has referred the document Ex.P/4 to show that the defendant has filed the suit against his own father. Perusal of Ex.P/4 do not show the name of the parties. In the crossexamination of the attesting witness though the defendant tried to raise a suspicion that there are contradictory statement at paras 6 & 32, but reading of the examination-in-chief and crossexamination do not show that any contradiction exist. The will further would show that it was during typing, the Registrar came at the instance of Gopal Prasad Sahu and Gopal had done all the formalities to call the Registrar. Certain suggestions were also given to the witness that he has no cordial relation with the defendant No.1, but he denied the same. 29. The plaintiffs have further stated that after execution of the will, the immovable properties were given to them. Certain description about the State Bank of India, Central Bank, UTI, Mutual funds, etc. has also been made. They stated that after execution of the will, the immovable properties were given to family members from time to time. 30. The letter dated 2-2-1993 of Rajkanwar Bai proved by the plaintiff is Ex.P/27. Typed letter is marked as Ex.P/28 i.e. dated 14-12- 2008. Letter of Rajkanwar Bai written to her daughter Sushila (PW-3) is dated 14-3-1995 (Ex.P/29). In respect of handwritten letter (Ex.P/27), the plaintiff stated that it was received from the almirah of their mother Rajkanwar Bai, after her death. In Ex.P/27 it was written that Umedchand, father of the defendant No.1, was not keeping good relation and has given excuses to his father because of that he died and for last two years, he has tortured and ill treated her, further tried to take over the property of his brothers, therefore, perforce she has written that Umedchand should not join her last rituals. 31. Ex.P/28 is memories of Rajkanwar Bai. 31. Ex.P/28 is memories of Rajkanwar Bai. PW-3 Sushila affirmed the signature of her mother Rajkanwar Bai from A to A and has also proved her signature on the document at B to B. Her sisters namely; Sakhuna and Sadhana have also signed from C to C and D to D, respectively. This witness has stated that she knows the signatures of her sisters and also proved Ex.P/29, which is a letter dated 14-3-1995 and affirmed that it was written by her mother. The sisters also stated that the plaintiffs used to take care of their mother and in respect of Ex.P/28 it was admitted and she affirmed the fact that the letter Ex.P/29 was written by her mother. This witness stated that relation between Umedchand, through whom the defendant No.1 is claiming were not cordial. 32. Reading of Ex.P/28 would show that the relation in between entire family was written, which state that even on a particular day she was physically assaulted by Umedchand, his sons Nirmalchand (defendant No.1) and Nalin and was also abused. Perusal of the said letter, which is affirmed by the sisters of the plaintiffs, though have not been granted any property, would show that the executor Rajkanwar Bai was not happy with the behaviour of Umedchand and his family members and also made serious allegations of manhandling, abuses were made against them. They also used to insult her in front of people, therefore, their conduct would show that the relation in between the executor and Umedchand, his sons Nirmalchand (defendant No.1) and Nalin were not at all cordial, but they were on loggerheads. The sisters, who did not get any property in the will, also supported this fact. Their animosity behaviour leads to raise presumption that Rajkanwar Bai had executed the will dated 26-7-1995 in favour of the plaintiffs. 33. As against this, defendant No.1 has come out with a will dated 28- 1-2003 though he has not been able to prove the document, but the suspicious circumstances looms large as statement of PW-1 Inderchand would show that the date 28-1-2003 was the death anniversary of their father Poonamchand and on that date all the family members were present. 33. As against this, defendant No.1 has come out with a will dated 28- 1-2003 though he has not been able to prove the document, but the suspicious circumstances looms large as statement of PW-1 Inderchand would show that the date 28-1-2003 was the death anniversary of their father Poonamchand and on that date all the family members were present. The statement of PW-2 Balchand Parakh also would show that on 28-1-2003 till late night he was present in the house of Rajkanwar Bai as some ceremonies and egkea= ds tki were going on and also marriage ceremony of daughter of Inderchand was being prepared, therefore, the family members were present and Rajkanwar Bai on that day was at her house for the whole day and she was moving with the support of walker in the house. PW-3 Sushila, sister of the plaintiffs, stated that after her marriage for the last 15 years, whenever she visited the mother she had not seen Nirmalchand and Nalin and after death of Rajkanwar Bai also they did not visit. 34. As against the statement of DW-1 Nirmalchand, partly crossexamined, stated that his brother received a phone call after five months from Mahendra Surana, resident of Balaghat (Madhya Pradesh) that late Rajkanwar Bai had executed a will 7-8 years back, which he is sending by post whereby they received the will dated 28-1-2003, which was kept with their Advocate namely; Shri H.B. Gaji, who kept the same in the file and subsequently the photocopy was produced. Receipt of the will by post after 7-8 years from a stranger appears to be unreasonable and no pleading has been made in this regard. 35. The Supreme Court in the matter of Ram Sarup Gupta (dead) by LRs (supra) held that in absence of pleading, evidence, if any, produced by the parties cannot be considered. The existence of will dated 28-1-2003 in this case, which is a nucleolus of dispute, the possession of it by the defendant was not pleaded, but in the evidence strangely it was stated that it was received by post and was kept with their Advocate. The existence of will dated 28-1-2003 in this case, which is a nucleolus of dispute, the possession of it by the defendant was not pleaded, but in the evidence strangely it was stated that it was received by post and was kept with their Advocate. The will, which encompasses the entire property of late Rajkanwar Bai, having received by post from the stranger from Balaghat (Madhya Pradesh), a distant place and thereafter after receipt of it it was kept with the Advocate do not appear to be reasonable and normal of a human conduct. 36. According to the pleading of the plaintiffs, as per written statement the defendant was not in possession of the property. No relief of possession was also claimed. The conduct of defendant No.1 as against the statement of PW-1 Inderchand; PW-2 Balchand Parakh, attesting witness; and PW-3 Sushila, sister of the plaintiffs, appears to be highly suspicious which leads us to form an opinion by applying arm chair theory that the will dated 26-7-1995 was validly executed and subsequent will dated 28-1- 2003 is surrounded with suspicion. 37. For the reasons mentioned hereinabove, the appeal filed by the defendant No.1 (FA No.506 of 2019), sans substratum, is liable to be and is hereby dismissed. The appeal filed by the plaintiffs (FA No.64 of 2020) against the counter claim, being barred by time, also do not appear to be logical. Consequently, the same is also dismissed. 38. In the result, both the appeals are dismissed, leaving the parties to bear their own cost(s). 39. A decree be drawn accordingly.