JUDGMENT : ASHOK S. KINAGI, J. 1. These two appeals are arise out of the same judgment and decree dated 04.09.2013 passed in RA No.10 of 2011 by the learned Senior Civil Judge and JMFC, Nelamangala. 2. For convenience, the parties are referred to based on their rankings before the trial Court. In RSA No.2014/2013, the appellant was defendant No.1, respondent No.1 was the plaintiff, respondent No.2 were the legal representatives of deceased defendant No.2. In RSA No.1526/2013, the appellants were legal representatives of deceased defendant No.2, respondent No.1 was the plaintiff and respondent No.2 was defendant No.1. 3. Brief facts, leading rise to the filing of these appeals are as follows. 4. The plaintiff filed a suit for declaration to declare that the plaintiff is the absolute owner of the suit schedule properties and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule properties. It is the case of the plaintiff that the plaintiff is the foster son of defendant No.1. Defendant No.1 and her husband, Marisiddaiah had no issues. Defendant No.1 and her husband fostering the plaintiff since childhood and they were looking after the welfare of the plaintiff. The plaintiff, defendant No.1 and Marisiddaiah were living together and managing their entire family and enjoying all the suit schedule properties. It is contended that Marisiddaiah executed a will dated 15.04.1991 bequeathing all the suit schedule properties in favour of the plaintiff. The plaintiff’s foster father died on 03.06.1991. After the demise of Marisiddiah, the plaintiff became the absolute owner of the suit schedule properties by virtue of a will dated 15.04.1991. The defendants have no right or interest over the suit schedule properties. It is contended that the defendants based on the created and manipulated documents tried to interfere with the plaintiff's peaceful possession over the suit schedule properties. The plaintiff lodged a complaint against the defendants, however, the police have not taken any action against the defendants. Hence, a cause of action arose for the plaintiff to file a suit for declaration and permanent injunction. Accordingly, prays to decree the suit. 5. During the pendency of the suit, defendant No.2 passed away and his legal representatives were brought on record. Hence, a cause of action arose for the plaintiff to file a suit for declaration and permanent injunction. Accordingly, prays to decree the suit. 5. During the pendency of the suit, defendant No.2 passed away and his legal representatives were brought on record. During the lifetime of defendant No.2, defendant Nos.1 and 2 jointly filed a written statement denying the averments made in the plaint and also denied the relationship of the plaintiff with Marisiddaiah and defendant No.1 and also denied the execution of an alleged will. It is contended that after the death of husband of defendant No.1, their daughters have succeeded to the properties. It is contended that item No.6 of the suit schedule property was sold to defendant No.2 in discharge of the family debts. Defendant No.2 is in peaceful possession and enjoyment of item No.6 of suit schedule property. Hence, prays to dismiss the suit. 6. The trial court based on the pleadings of the parties framed the following issues: i. Whether the plaintiff proves that he is the absolute owner of the suit schedule properties? ii. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule properties? iii. Whether the plaintiff proves that interference by the defendant? iv. Whether the plaintiff proves that he is the foster son of the deceased Marisiddaiah and the defendant No.1? v. Whether the plaintiff proves that the deceased Marisiddiah has executed a will in favour of the plaintiff in respect of the suit schedule properties? vi. Whether the 2 nd defendant proves that deceased Marisiddaiah and the 1 st defendant had four daughter as contended in the written statement? vii. Whether the suit is bad for non-joinder for necessary parties? viii. Whether the plaintiff is entitled for the relief of declaration and permanent injunction? ix. Whether the 2 nd defendant proves that he is the bonafide purchaser of the item No.6 of the suit schedule properties? x. What decree or order? 7. The plaintiff, to substantiate his case examined himself as PW.1, examined five witnesses as PW2 to PW6 and marked 53 documents as Exs.P1 to P53. In rebuttal, the legal representative of defendant No.2 i.e., defendant No.2(c) was examined as DW.1, Defendant No.1 was examined as DW.2, and examined one witness as DW.3 and got marked 42 documents as Ex.D1 to Ex.D42. In rebuttal, the legal representative of defendant No.2 i.e., defendant No.2(c) was examined as DW.1, Defendant No.1 was examined as DW.2, and examined one witness as DW.3 and got marked 42 documents as Ex.D1 to Ex.D42. The trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1 to 5 and 8 in the negative, issue Nos.6, 7 and 9 in the affirmative and consequently issue No.10 answered as per the final judgment. The suit of the plaintiff was dismissed with costs vide judgment dated 20.06.2011. 8. The plaintiff, aggrieved by the dismissal of suit in O.S.No.185 of 1994, preferred an appeal in R.A.No. 10 of 2011 on the file of learned Senior Civil Judge and JMFC, Nelamangala. 9. The First appellate court, after hearing the learned counsel for the parties, framed the following points for consideration: i. Whether the approach of the trial Court in dismissing the suit filed by the plaintiff is proper? ii. Whether the interference by this Court is required? iii. What order? 10. The First appellate court, after reassessing the entire evidence on record answered point No.1 in the negative, point No.2 in the affirmative, and point No.3 as per the final order. The appeal was allowed vide judgment dated 04.09.2013. The judgment and decree passed in OS No. 185 of 1994 was set aside. Consequently, the suit of the plaintiff was decreed and it was declared that the plaintiff is the absolute owner of the suit schedule properties and the defendants are restrained from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. 11. Defendant No.1, aggrieved by the impugned judgment filed the appeal in RSA No.2014 of 2013 and the legal representatives defendant No.2, aggrieved by the impugned judgment, preferred an appeal in RSA No.1526 of 2013. 12. Heard Sri. Rajesh Mahale, learned senior counsel for the defendants, and also learned counsel for the plaintiff. 13. Learned Senior counsel for the defendants submits that the first appellate court in para No.34 recorded a finding that although the plaintiff have examined attesting witnesses, they did not turn up for cross-examination. In the absence of the evidence of an attesting witness, the first appellate court committed an error in recording the finding that the plaintiffs have proved the will. In the absence of the evidence of an attesting witness, the first appellate court committed an error in recording the finding that the plaintiffs have proved the will. Thus the said finding recorded by the first appellate court is contrary to Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. He submits that though the plaintiff has filed an affidavit in the form of examination-in-chief of the attesting witnesses, however, they did not tender for cross-examination. 14. The trial Court has rightly discarded the evidence of the attesting witnesses. But the first appellate court, without considering the said aspect, has passed the impugned judgment. The impugned judgment passed by the first appellate court is arbitrary and erroneous. He submits that in case if the appellate court had come to a conclusion that the attesting witnesses have not tendered for cross-examination, the appellate court could have remanded the matter to the trial court with an opportunity to the plaintiff to keep the witnesses present for cross-examination. Hence, on these grounds, prays to allow the appeal. 15. Per contra, learned counsel for the plaintiff fairly concede that though first appellate court has recorded a finding in para No.34 and para No.38, the said findings are in the absence of evidence of attesting witnesses. He submits that although the first appellate court recorded a finding in para No.34 of the judgment, and the first appellate court could have remanded the matter to the trial Court with a liberty to the plaintiff to keep the attesting witnesses present for tendering them for cross-examination. The first appellate court committed an error in passing the impugned judgment, and accordingly, he prays to allow the appeal and remit the matter to the trial Court with a liberty to the plaintiff to keep the witnesses present for cross-examination. 16. This Court admitted the appeal to consider the following substantial questions of law: 1) Whether the 1 st Appellate Court is justified in decreeing the suit of the plaintiffs by reversing the judgment and decree of the trial Court without considering the documents? 2) Whether the 1 st Appellate Court is justified in reversing the judgment and decree without proving the will as required under Section 135 of the Indian Evidence Act? 2) Whether the 1 st Appellate Court is justified in reversing the judgment and decree without proving the will as required under Section 135 of the Indian Evidence Act? 3) Whether the 1 st Appellate Court is justified in holding that the plaintiffs have proved the will in accordance with law? Reg. Substantial question of law Nos. 1 to 3: 17. Substantial question Nos.1 to 3 are interlinked together and hence, they are taken together for common discussion to avoid the repetition of facts. 18. The plaintiff filed a suit for declaration and permanent injunction, claiming that he is the foster son of Marisiddaiah and defendant No.1, and Marisiddaiah executed a will on 15.04.1991, bequeathing the suit schedule properties in favour of the plaintiff and the executant died on 03.06.1991. After his demise, the plaintiff became the absolute owner of the suit schedule properties based on a will, executed by Marisiddaiah and also produced the records marked as Ex.P1 to P53. The plaintiff has examined the attesting witnesses as PW.2 and PW.3. Though the affidavit in the form of examination-in- chief of PW.2 and PW.3 was filed, however they did not tender for cross-examination, they remained absent. Hence their cross examination was taken as nil, and thereafter, when the case was posted for judgment, the plaintiff filed an application to recall PW2 and PW3 for tendering them for cross examination. The said application came to be rejected by the trial Court. The plaintiffs aggrieved by the order on the said application preferred a writ petition in WP No.17958/2011 and 17959/2011. The said writ petitions came to be dismissed vide order dated 03.06.2011. Thereafter the matter was posted for judgment. The trial Court dismissed the suit vide judgment dated 20.06.2011. The plaintiff aggrieved by the judgment and decree passed in OS No.185 of 1994 preferred an appeal in RA No.10 of 2011. The first appellate court recorded its finding in para No.34 which reads as follows: "34. In this case, even as per the list, of witnesses written by the court official PW2 and PW3 are written as Rajanna and Syed Zahir. Subsequently their names was strucked down and name of Ayathulla Khan and Sathyanrayana is written. Even as per the order sheet dated 08.12.2005, the order sheet discloses that the affidavits of Rajanna and Syed Zahir is field. Thereafter, the case is posted for further chief. Subsequently their names was strucked down and name of Ayathulla Khan and Sathyanrayana is written. Even as per the order sheet dated 08.12.2005, the order sheet discloses that the affidavits of Rajanna and Syed Zahir is field. Thereafter, the case is posted for further chief. Thereafter on 16.12.2005, they were absent and the case is posted for 21.01.2006. Then on that day, the witnesses were present, but the counsel for the defendant sought time on costs. Thereafter for three hearing dates, the witnesses remained absent and their evidence is discarded. This order sheet clearly goes to show that the efforts made by the plaintiff was to examine the witnesses, but as the date was given they have turned up for cross examination once, but the other side took time. This shows that plaintiff had made all efforts to examine both the attestors to the document. Thereafter, after taking affidavit copies the Trial Court has posted the case for judgement. This shows that the opportunity was not given to the plaintiff to examine these two attestors. In this case, the Trial Court ought to have given opportunity to examine these two witnesses. In this case, when once the effort made by the plaintiff is forthcoming on the record, the Trial Court ought not to have considered that the witnesses are not examined. Even, the Trial Court ought not to have given opportunity for cross examination of the witness because the attestor to a Will are material witnesses and securing them for more than 2 to 3 occasions is a difficult task. Under such circumstances, the observation made by the Trial Court is not correct." 19. From the perusal of paragraph 34 of the judgment of the first appellate court, it clearly discloses that the order sheet speaks that the plaintiff has made attempt to examine the witnesses. But as the date was given they have turned up for cross-examination once, but the other side took time. This shows that the plaintiff has made all efforts to examine both the attestors to the document. The said finding recorded by the first appellate court in para No.34 of the judgment is contrary to the records. But as the date was given they have turned up for cross-examination once, but the other side took time. This shows that the plaintiff has made all efforts to examine both the attestors to the document. The said finding recorded by the first appellate court in para No.34 of the judgment is contrary to the records. Although PW.2 and PW.3 are the attestors to the alleged will, affidavit in the form of examination-in-chief was filed, they have tendered themselves for cross- examination once, wherein the learned counsel for the defendant sought time on that day. Further, the matter was adjourned for cross-examination of PW.2 and PW.3, and on that day, PW2 and PW3 remained absent. 20. The trial Court has taken the cross-examination of PW.2 and PW.3 as nil. Thereafter, the matter was posted for judgment. The plaintiff filed an application to recall PW.2 and PW.3 for cross-examination. The said application was rejected and the plaintiff preferred the writ petitions, which came to be dismissed. In the absence of evidence of testator of the will, the first appellate court records a finding that the plaintiff has proved the will. The findings recorded by the first appellate court is contrary to Section 68 of the Evidence Act and Section 63 of the Indian Succession Act. The findings recorded by the first Appellate Court is arbitrary and erroneous, and without application of mind. If the first appellate court had come to a conclusion that the plaintiff had made an attempt to examine the attestors to the will and they did not tender themselves for cross- examination, the first appellate court could have remanded the matter to the trial Court with a liberty to the plaintiff to keep the witnesses/attestors present for the cross-examination. Instead of remitting the matter to the trial Court, the first appellate Court allowed the appeal, and decreed the suit of the plaintiff which is erroneous. The judgment and decree passed by the first appellate court is arbitrary and erroneous. Hence on these grounds, I answer substantial question of law Nos.1 to 3 in the negative. 21. Accordingly, I proceed to pass the following order: ORDER: i. The Regular Second Appeals are allowed. ii. The judgment and decree dated 04.09.2013 passed in R.A.No.10 of 2011 and the judgment and decree dated 20.06.2011 passed in O.S.No.185 of 1994 passed by the Civil Judge and JMFC, Nelamangala, are hereby set aside. 21. Accordingly, I proceed to pass the following order: ORDER: i. The Regular Second Appeals are allowed. ii. The judgment and decree dated 04.09.2013 passed in R.A.No.10 of 2011 and the judgment and decree dated 20.06.2011 passed in O.S.No.185 of 1994 passed by the Civil Judge and JMFC, Nelamangala, are hereby set aside. iii. The suit in OS No. 185 of 1994 is restored to its original file. iv. A Liberty is reserved to the plaintiff to keep the PW.2 and PW.3 present for cross-examination and the trial Court shall conclude the evidence of PW.2 and PW.3 within 15 days from the date of appearance, and thereafter, pass the appropriate judgment in accordance with law. v. This Court has not made any adjudication on the merits in issue. vi. All the contentions of the parties are kept open. vii. The office is directed to transmit the records to the trial court, forthwith. viii. The parties are directed to appear before the trial court on 05.02.2026 without awaiting any further notice. ix. It is made clear that, in case if PW2 and PW3 are not unavailable, liberty is reserved for the plaintiff to lead the evidence as per Section 69 of the Indian Evidence Act.