ORDER : 1. The present First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 challenging the impugned judgment and decree dated 04.05.2007 passed by City Civil Court, Ahmedabad in Civil Suit No.5532 of 1997. 2. Heard learned advocates for the respective parties. 3. Parties are referred as per their original status in suit. 4. The brief facts of the case are that the plaintiff-present appellant filed a Civil Suit No.5532 of 1987 against the defendants for a relief of permanent injunction, the recovery of possession, setting aside the sale deed and also for a relief of permanent injunction in the form of declaration. One Chinuprasad C. Joshi owned a bungalow bearing No.7-A situated at Sagar Society, Bhulabhai Park, Geeta Mandir Raod, Ahmedabad. The appellant and respondent No.2 are the sons of Chinuprasad C. Joshi. Said Chinuprasad Joshi was married to one Suriyakumari, who is the mother of the appellant and respondent No.2. After the demise of Suriyakumari, Chinuprasad C. Joshi got married to defendant No.1- respondent No.1. Chinuprasad C. Joshi expired on 28.06.1993 and before his death, he executed a Will dated 06.02.1993, wherein the suit property was bequeathed to defendant No.1. After the death of Chinuprasad C. Joshi, pursuant to the Will, the suit property was mutated in the name of defendant No.1 in the society record. Defendant No.1 executed irrevocable general power of attorney dated 23.06.1994 in favour of plaintiff for managing the suit property. On 28.10.1997, the suit property was sold to defendant Nos.4 to 7 by way of a registered sale deed. The plaintiff claimed right in the suit property. Pending the suit, plaint was amended and a relief of cancellation of registered sale deed dated 27.10.1997 was added. 4.1. Though defendant Nos.1, 2 and 3 are duly served, they did not file any written statement. However, the defendant Nos.4 to 7 appeared and filed their written statement at Exhibit-15. 4.2. Following issues were framed at Exhibit-166; “(1) Whether the plaintiff proves that the deceased father of the plaintiff died intestate in the year 1993? (2) Whether the plaintiff proves that the plaintiff has right, title and interest in the suit property situated at Sagar Cooperative Society Bungalow No.7A as the heir of deceased father as alleged? 4.2. Following issues were framed at Exhibit-166; “(1) Whether the plaintiff proves that the deceased father of the plaintiff died intestate in the year 1993? (2) Whether the plaintiff proves that the plaintiff has right, title and interest in the suit property situated at Sagar Cooperative Society Bungalow No.7A as the heir of deceased father as alleged? (3) Whether the defendant No.1 & 2 are entitled to transfer by way of sale the suit premises to defendant No.4 to 7 and whether the transfer of the suit premises by way of sale in favour of defendant No.4 to 7 is legal and valid? (4) Whether the defendant No.4 to 7 are bona fide purchaser for value without notice? (5) Whether the defendants prove that the suit premises have been sold and transferred by sale deed dated 20/10/1997 executed by defendant No.2 in favour of defendant No.4 to 7? (6) Whether the defendants prove that the deceased father of the plaintiff executed a Will by which the late father had bequeathed absolutely the suit property in favour of defendant No.1 mother? (7) Whether it is proved that pursuant to the Will of the deceased Chinubhai defendant No.1 & 2 are entitled to sell and transfer the suit premises and the plaintiff has no right, title and interest as alleged? (8) Whether the plaintiff is entitled to claim any relief? (9) What judgment and order?” 4.3 Plaintiff has examined himself vide Exhibit-117. Defendant No.2 has examined himself at Exhibit-131. Defendant No.2 has examined witness Manubhai Govindlal Gandhi at Exhibit-139. Plaintiff has produced various documentary evidences. Defendant No.4 to 7 produced documentary evidence containing Resolution No.19 passed by the Society dated 19.01.1995 vide Exhibit 134. A letter written by the plaintiff to the Chairman of the society at Exhibit-132 and receipts issued by the society pertaining to the transfer fees. Original WILL of deceased Chinuprasad C. Joshi is produced at Exhibit-140 by defendant No.2. 5. Learned advocate for the appellant has submitted that the learned trial Court has committed a grave error by not properly appreciating oral as well as documentary evidence. It is further submitted that the suit property was owned by his father Chinuprasad C. Joshi, who was a Doctor by profession. It is also contended by the plaintiff that Chinuprasad C. Joshi had married twice. It is further submitted that the suit property was owned by his father Chinuprasad C. Joshi, who was a Doctor by profession. It is also contended by the plaintiff that Chinuprasad C. Joshi had married twice. First marriage was solemnized with Suriyakumari and form the said wedlock, plaintiff, defendant No.2 and one Kiranbhai are borne. After the death of Suriyakumari, Chinuprasad C. Joshi married with Defendant No.1 Kapilaben. 5.1. It is further submitted that Chinuprasad C. Joshi intestate died in the year 1993. It is further submitted that the plaintiff has share in the suit property. An irrevocable general power of attorney on 23.06.1994 was executed by defendant No.1 in favour of the plaintiff and pursuant to the said power of attorney, the plaintiff was managing the suit property. On 22.10.1997, upon receipt of the letter written by the society, the plaintiff came to know that the defendant No.1 is trying to sell the suit property. The suit property was sold by defendant No.1 to defendant Nos.4 to 7 on 28.10.1997 by way of a registered sale deed. Learned advocate for the appellant has further submitted that the WILL dated 06.02.1993 is not duly proved and the appellant had no knowledge that the irrevocable general power of attorney has been revoked by the mother in the year 1994. The plaintiff being blind was not aware about the fact of the execution of the alleged WILL made by the father. 5.3 Pending this appeal, respondent Nos.3 to 7 are deleted by the appellant. Respondent No.1-original Defendant No.1 died and no heirs of respondent No.1 are brought on record by appellant. 6. Per contra, learned advocate for respondent No.2 has submitted that this Court may not interfere with the findings of the fact which have been arrived at by the learned trial Court. It is further submitted that looking to the nature of reliefs, which are sought for in the plaint, the present appeal has become infructuous. It is further submitted that the reliefs which are sought for in the plaint against the defendant No.1, which is in connection with the irrevocable general power of attorney dated 23.06.1994 does not survive as defendant No.1 has passed away during the pendency of the suit in the year 1998. The cause does not survive. It is further submitted that the reliefs which are sought for in the plaint against the defendant No.1, which is in connection with the irrevocable general power of attorney dated 23.06.1994 does not survive as defendant No.1 has passed away during the pendency of the suit in the year 1998. The cause does not survive. It is further submitted that during the lifetime of defendant No.1, the said irrevocable general power of attorney was cancelled on 30.06.1994 and a public notice in Sandesh Newspaper was published on 14.06.1996. 6.1. It is further contended that one of the prayers in the plaint was for cancellation of registered sale deed dated 27.10.1997. However, the respondent Nos.4 to 7 being the transferees of the suit property have been deleted from the present First Appeal and in absence of presence of the subsequent transferees, the said sale deed may not be cancelled and set aside. It is further submitted that another suit being Civil Suit No.3163 of 2004 was also filed by the plaintiff. The said suit was pertaining to WILL of Chinuprasad C. Joshi dated 06.02.1993. However, the said suit has been dismissed by the learned trial Court on 17.01.2024. It is further submitted that in the present suit, the plaintiff has not challenged the WILL dated 06.02.1993 and in the background of fact, as a beneficiary of the WILL dated 06.02.1993, the name of defendant No.2 was mutated in the society record as an owner and subsequently being the owner of the suit property, defendant No.1 transferred the suit property in favour of the defendant Nos.4 to 7 by executing a registered sale deed dated 28.10.1987. Defendant No.2 stood as a witness in the registered sale deed. It is further contended that the Will of Chinuprasad C. Joshi Exhibit-140 is duly proved by examining one of the attesting witness of the WILL namely Manubhai Govindlal Gandhi vide Exhibit-139. And the said witness has duly proved the execution of the Will. It is further submitted that plaintiff has not been able to prove the alleged fact that Chinuprasad C. Joshi has died intestate in the year 1993. 7. From the evidence on record, it appears that the learned trial Court has rightly observed that the plaintiff has no right, title or interest in the suit property in question. It is further submitted that plaintiff has not been able to prove the alleged fact that Chinuprasad C. Joshi has died intestate in the year 1993. 7. From the evidence on record, it appears that the learned trial Court has rightly observed that the plaintiff has no right, title or interest in the suit property in question. The sale deed executed in favour of the defendant Nos.4 to 7 is a valid sale deed. 8. I have considered the rival submissions and the contentions together with record and proceedings which is placed on record. The undisputed fact which has cropped up from the record is that the suit property was owned by Dr. Chinuprasad C. Joshi. Plaintiff and defendant No.1 are the step sons of defendant No.2. Before the death of Chinuprasad C. Joshi on 28.06.1993, deceased had executed a WILL dated 06.02.1993 (Exhibit-140) and bequeathed the suit property to his wife defendant No.1. After the death of Chinuprasad C. Joshi, the suit property was mutated as an owner in the society record in the year 1995. A resolution was also passed by the society on 19.01.1995 mutating the name of defendant No.1 in the society record. From the oral evidence, more particularly Exhibit-117, the plaintiff has admitted in his cross-examination he has not challenged the WILL dated 06.02.1993 till 2004. The plaintiff had filed Civil Suit No.3163 of 2004 challenging the WILL. The irrevocable general power of attorney dated 23.06.1994, which came to be cancelled on 30.06.1994 and a public notice of cancellation of the said power of attorney was published in newspaper on 14.06.1996. Even plaintiff has not challenged the resolution No.19, which was passed by the defendant No.3-Society mutating the name of defendant No.1 in the Society record as an owner/member. The plaintiff has also admitted that the possession of the suit property was handed over by the defendant No.1 to defendant Nos.4 to 7 after the execution of the sale deed. Plaintiff has admitted in his cross- examination that the present suit is filed after the sale deed was executed by Defendant No.1 in favour of Defendant Nos.4 to 7. Defendant No.2 has signed as a witness in the registered sale deed dated 28.10.1997. 9. Plaintiff has admitted in his cross- examination that the present suit is filed after the sale deed was executed by Defendant No.1 in favour of Defendant Nos.4 to 7. Defendant No.2 has signed as a witness in the registered sale deed dated 28.10.1997. 9. For proving the due execution of the WILL, as contemplated under Section 63 of the Succession Act, evidence of one of the witnesses of the WILL is a vital piece of evidence. The witness Manubhai Govindlal Gandhi has been examined at Exhibit-139 and he has not only proved due execution of the WILL but has also admitted in his cross-examination that when the WILL dated 06.02.1993 was being signed by Chinuprasad C. Joshi, plaintiff and defendant No.2 both were present. On considering the oral evidence of the said witness, it is proved beyond doubt that deceased had executed a WILL dated 06.03.1993 and from other evidences, it is found that the said WILL has been implemented and thereafter, defendant No.2 has executed a registered sale deed in favour of the defendant Nos.4 to 7. 10. It is a well settled principle in the cases of WILL that the party who propound the WILL has to prove the WILL. In the present case, the requirement of Section 63 of the Succession Act has been duly complied with and form the evidence which is available on record, I am of the view that the execution of the Will is duly proved and the plaintiff has not been able to establish any of his averments made in the plaint. 11. It would be apposite to refer the decision of Hon’ble Supreme Court in the case of V.Prabhakara Versus Basavaraj K.(Dead) By Lr reported in 2021 (0) AIJEL-SC 67870, wherein the Hon’ble Supreme Court has observed as under;- 21. The First appellate court while exercising power under Section 96 can re-do the exercise of the trial court. However, such a power is expected to be exercised with caution. The reason being, the trial court alone has the pleasure of seeing the demeanor of the witness. Therefore, it has got its own advantage in assessing the statement of the witnesses which may not be available to the appellate court. In exercising such a power, the appellate court has to keep in mind the views of the trial court. The reason being, the trial court alone has the pleasure of seeing the demeanor of the witness. Therefore, it has got its own advantage in assessing the statement of the witnesses which may not be available to the appellate court. In exercising such a power, the appellate court has to keep in mind the views of the trial court. If it finds that the trial court is wrong, its decision should be on the reasoning given. A mere substitution of views, without discussing the findings of the trial court, by the appellate court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court. While adopting reasoning in support of its findings, the appellate court is not expected to go on moral grounds alone. 22. The aforesaid views expressed by us are nothing but a reiteration of the settled principle of law as could be seen through the following paragraphs of the decision rendered by this Court in the case of Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497 : "27. It is no doubt true that the High Court was exercising power as first appellate court and hence it was open to the Court to enter into not only questions of law but questions of fact as well. It is settled law that an appeal is a continuation of suit. An appeal thus is a re-hearing of the main matter and the appellate court can reappraise, re- appreciate and review the entire evidence - oral as well as documentary and can come to its own conclusion. 28. At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanor of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a nding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well-established principles of law or unreasonable. 29. When a nding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well-established principles of law or unreasonable. 29. Before more than a century, in Coghlan v. Cumberland [(1898) 1 Ch 704 (CA)] Lindley, M.R. pronounced the principle thus; "Even where the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the Judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions and when the question arises which witness is to be believed rather than another; and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the Court in differing from the Judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen." (See also observations of Lord Thankerton in Watt v. Thomas, [1947 AC 484]) 30. In Sara Veeraswami v. Talluri Narayya [ AIR 1949 PC 32 ] the Judicial Committee of the Privy Council, after referring to relevant decisions on the point, stated (Quoting from Watt v Thomas, [(1947) 1 All ER 582, pp.583 H-584 A]): "...but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given." 31. This Court also, before more than half a century in Sarju Pershad v. Jwaleshwari, Pratap Narain Singh [ AIR 1951 SC 120 ] stated: (AIR p. 121, para 7) "7. The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact." 32. Referring to several cases on the point, the Court concluded: (Sarju Pershad case, AIR p. 123, para 15): "15 The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the court, outweighs such finding." (emphasis supplied) 33. After about a decade, in Radha Prasad v. Gajadhar Singh [ AIR 1960 SC 115 ]this Court reiterated: (AIR p. 123, para 15) "14. The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the appeal court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanor of the witness in court. But this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. But this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the appeal court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the appeal court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanor of witnesses observed in court but a question of inference of one fact from proved primary facts the court of appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified." 34. In T.D. Gopalan v. Commissioner of Hindu Religious & Charitable Endowments [ (1972) 2 SCC 329 ], this Court said: (SCC p. 333, para 9): "9. The High Court next proceeded to reproduce a summary of the statement of each of the witnesses produced by the defendants. No attempt whatsoever was made to discuss the reasons which the learned District Judge had given for not accepting their evidence except for a general observation here and there that nothing had been suggested in the cross- examination of a particular witness as to why he should have made a false statement. We apprehend that the uniform practice in the matter of appreciation of evidence has been that if the trial court has given cogent and detailed reasons for not accepting the testimony of a witness the appellate court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial court. We are, therefore, not in a position to know on what grounds the High Court disagreed with the reasons which prevailed with the learned District Judge for not relying on the evidence of the witnesses produced by the defendants." 35. We are, therefore, not in a position to know on what grounds the High Court disagreed with the reasons which prevailed with the learned District Judge for not relying on the evidence of the witnesses produced by the defendants." 35. Yet in another decision in Madhusudan Das v. Narayanibai [ (1983) 1 SCC 35 ], this Court said: (SCC pp. 39-40, para 8): "8. ...At this stage, it would be right to refer to the general principle that, in an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. ...The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact." (emphasis supplied) 36. Three requisites should normally be present before an appellate court reverses a finding of the trial court: (i) it applies its mind to reasons given by the trial court; (ii) it has no advantage of seeing and hearing the witnesses; and (iii) it records cogent and convincing reasons for disagreeing with the trial court. 37. If the above principles are kept in mind, in our judgment, the decision of the High Court falls short of the grounds which would allow the first appellate court to reverse a nding of fact recorded by the trial court. 37. If the above principles are kept in mind, in our judgment, the decision of the High Court falls short of the grounds which would allow the first appellate court to reverse a nding of fact recorded by the trial court. As already adverted earlier, the High Court has 'virtually' reached a conclusion without recording reasons in support of such conclusion. When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial court or conclusions arrived at were not in consonance with law." 12. On considering the oral as well as documentary evidence, this Court is of the view that the learned trial Court has not committed any error either of fact or in the eye of law in dismissing the suit. 13. Thus, in the totality of the facts and circumstances of the case, the present First Appeal fails and the same is dismissed. 14. Accordingly, the connected Civil Application stands disposed of. Record and proceedings be sent to the concerned Court below forthwith.