Ajay Mohan Goel, J. - This appeal has been filed against judgment and decree passed by the Court of learned Addl. District Judge, Mandi dated 17.1.2003 in Civil Appeal No. 29 of 1997, whereby the learned Appellate Court has upheld the judgment and decree passed by the Court of learned Senior Sub Judge, Mandi dated 30.9.1996 in Civil Suit No. 124 of 1990 vide which the learned Trial Court had decreed the suit of the plaintiff partly.
2. This regular second appeal was admitted on 11.8.2004, on the following substantial questions of law:-
"1. Whether there has been non-compliance of provisions of Order 20, Rule 5 , Code of Civil Procedure by the learned Trial Court? If so, to what effect?
2. Whether the appellant can raise the question involved above having failed to raise such question before the first Appellate Court?
3. Brief facts necessary for the purposes of adjudication are that appellant/plaintiff (hereinafter to be referred as ''the plaintiff'') filed a suit for declaration and for confirmation of joint possession as consequential relief or in the alternative for joint possession of the suit land on the pleadings that late Doom Ram, father of the plaintiff and defendants No. 1 to 5 and predecessor-in-interest of the proforma defendants was owner in possession of the suit land. The said property was joint Hindu family property, ancestral in nature and after the death of Doom Ram said property was inherited by plaintiff and defendants as per order of succession. Defendants No.1 to 4 set up a ''Will'' on the basis of which they got mutation of succession attested in their favour from the Revenue Officer to the exclusion of plaintiff and remaining defendants. Plaintiff was the eldest son and was living jointly with his father Doom Ram. He was under impression that the land would automatically devolve upon natural heirs as per provisions of Hindu Succession Act. Plaintiff was step brother of defendants No.1 to 4. Defendant No.1 being educated and shrewd, manipulated a ''Will'' alleged to have been executed by Doom Ram on 14.3.1969 to exclude plaintiff and other heirs, though, the plaintiff being eldest son was never aware of any such ''Will'' nor Doom Ram ever informed plaintiff of the execution of any ''Will'' depriving plaintiff of his share over the suit land. According to the plaintiff, he had good relation with his father Doom Ram and he was serving his father till his death. There was no occasion for Doom Ram to deprive plaintiff from inheritance of his estate. It was further the case of plaintiff that defendant No.1 was Gram Sewak and was in service of Himachal Pradesh Government. He secretly manipulated attestation of mutation in respect of the suit land after the death of his father. Plaintiff was not informed of any such proceedings. Plaintiff never appeared in any such mutation proceedings nor did he give his consent to the attestation of mutation on the basis of impugned ''Will''. Plaintiff came to know of this fraud during the proceedings of a suit filed by defendant No.5 against defendants No.1 to 4 in the year 1980-81. During the course of above-mentioned proceedings, application to bring on record remaining heirs of Doom Ram was made which was disallowed by the Court of learned Sub Judge (2), Mandi. Suit was decreed by learned Sub Judge (2), Mandi. As per the plaintiff, the ''Will'' was declared null and void and decree for joint possession was passed in favour of all heirs of Doom Ram. Defendants No.1 to 4 went in appeal before learned District Judge, Mandi. In appeal, a compromise was entered into between defendants No.1 to 4 on one side and defendant No.5 on the other side allowing defendant No.5 1/7th share in the suit land. On the basis of said compromise recorded between defendant No.1 to 4 and defendant No.5, defendants No.1 to 4 denied the right of the plaintiff to have any share in the suit land. Further as per the plaintiff since 1.8.1990 defendants No.1 to 4 were obstructing him in exercising his right of ownership and possession over the suit land. It was further mentioned in the plaint that the suit property was joint Hindu family property, ancestral in nature and it came in the hands of Doom Ram grandfather of plaintiff and defendants No.1 to 5 and was not self acquired property of Doom Ram. Thus, according to the plaintiff the same could not have been disposed of by Doom Ram by way of a ''Will''. It was further averred that though it was not admitted that Doom Ram had executed any ''Will'' and the ''Will'' was a forged one, yet if at all execution of the ''Will'' is proved in that event the same is outcome of undue influence exercised by Netar Singh. According to the plaintiff, Doom Ram was an old and ailing person and Netar Singh was occupying dominant and fiduciary position and taking advantage of his position as he was capable of exercising undue influence on Doom Ram, he got the said ''Will'' executed. It was further averred that assuming that the ''Will'' is valid one, in that situation it does not affect the suit land which is not self acquired property of Doom Ram. It was on these bases that suit was filed by the plaintiff.
4. This suit was contested by defendants No.1 to 4, who denied the case as set up by the plaintiff. According to defendants No.1 to 4, the suit property was bequeathed by Doom Ram during his lifetime by way of a registered ''Will'' in their favour and they were exclusive owner in possession of the suit land. It was denied by defendants that the plaintiff was not aware of the ''Will'' or that it was plaintiff who was serving Doom Ram till his death. It was also denied that defendant No.1 had manipulated execution of the will, as was alleged by the plaintiff. It was further the case of defendants No. 1 to 4 that the suit property was self acquired property of Doom Ram and was not ancestral or joint Hindu family property. It was further mentioned in the written statement that plaintiff had knowledge of mutation proceedings and had never objected to the attestation of the same on the basis of ''Will''. It was further averred that after the mutation it was plaintiff who got the suit filed against defendants No.1 to 4 by defendant No.5. Accordingly, the claim as was put-forth in the plaint was denied in totality by the defendants.
5. On the basis of pleadings on record, the learned Trial Court framed the following issues:-
"1. Whether the property in dispute was ancestral in nature qua plaintiff and Doom Ram deceased as alleged ?...OPP.
2. Whether the property in dispute was joint Hindu family property and plaintiff is class-I heir of deceased Doom Ram?....OPP.
3. Whether the plaintiff is entitled to confirmation of joint possession of the property in dispute ? �OPP.
4. Whether deceased Doom Ram executed a valid will in favour of the defendants No.1 to 4?...OPP
4A. Whether the suit is barred by the principle of res judicata?...OPD.
4B, Whether the plaintiff is estopped by his act and conduct from filing the present suit?...OPD.
4C. Whether the defendants No.1 to 4 have become owners of the shares of other co-sharers by way of adverse possession? �OPD.
5. Relief.
6. The following findings were returned on the issues so framed by the learned Trial Court.
"Issue No.1 Yes partly.
Issue No.2 Yes partly.
Issue No.3 Yes partly.
Issue No.4 Yes.
Issue No.4A No.
Issue No.4B No.
Issue No.4C No."
Relief Suit of the plaintiff decreed partly as per operative portion of judgment."
7. Accordingly, the suit was partly decreed by the learned Trial Court. Para 19 of the judgment is reproduced herein below:-
"19. Thus, for the foregoing reasons recorded for deciding the aforesaid issues, the suit of the plaintiff succeeds partly, therefore, a decree for declaration that the plaintiff are co-owners in possession to the extent of 1/7th share in land measuring 12-17-12 bighas comprising khata khatauni No. 8/13, khasra Nos. 44, 51, 59, 64, 287/90, 136, 141, 144, 150,154, 160, 165, 175, 176,178,191,204, 212 and 213 situate in village Pargi, 1/21 share in khasra Nos. 211 and 210 measuring 0-6-19 bighas situate in village Pargi and 1/21 share in land measuring 63-2-0 bighas comprised in khata khatauni No. 9/17, khasra Nos. 373, 380, 392, 404, 407, 408, 409, 413, 418, 370, 374, 376, 378, 400, 401, 402, 403, 405, 406, 410, 372, 375, 381, 382, 383, 391, 393 to 397, 412, 414, 415, 417, 368, 369, 377, 398, 399, 416, 411 and 367 situate in village Nalwari along with decree for confirmation of the joint possession of the parties in respect of the aforesaid land is granted in favour of the plaintiff and against the defendants. Rest of the claim of the plaintiff is dismissed. No order as to costs. Decree sheet be prepared. File, after completion, be consigned to the record room."
8. Feeling aggrieved by the said judgment passed by learned Trial Court, the plaintiff filed an appeal which was dismissed by the court of learned Addl. District Judge, Mandi vide judgment dated 17.1.2003.
9. The learned Appellate Court upheld the judgment and decree passed by the learned Trial Court.
10. The learned Appellate Court held that statement recorded of the scribe of the ''Will'' and the witnesses were on record as Ext. DA to Ext. DS and a perusal of the same made it manifestly clear that the ''Will'' in issue was validly executed in accordance with law. The learned Appellate Court further held that the question of validity of the execution of the ''Will'' was also subject matter of the trial before the learned Sub Judge 1st Class (Court No.2) Mandi in civil suit titled as Damodar v. Netar Singh, wherein the learned Trial Court on consideration of the entire evidence on record including the testimony of one of the marginal witness Parma Ram who testified that the ''Will'' was scribed by Badri Dass and that he and Roop Singh were attesting witnesses to the execution of the ''Will'' and Doom Ram put his signature in presence of Roop Singh held that the same adequately and conclusively established the valid and due execution of the ''Will'' in accordance with the provisions of Indian Succession Act. The learned Appellate Court held that the question of sound disposing mind of deceased Doom Ram was also considered in the said proceedings and Parma Ram had stated that Doom Ram was mentally fit and sound at the time of execution of the ''Will''. The learned Appellate Court further held that the contention of the plaintiff that he being the eldest son has been excluded from inheritance from the estate of Doom Ram was also without merit in view of the fact that besides the ''Will'' being valid having been executed in accordance with law, it stood established that deceased testator Doom Ram was not having cordial relation with Dhani Devi mother of the plaintiff which was proved vide Ext. DA-1 which was judgment in suit for maintenance which was instituted by mother of the plaintiff against Damodar Dass, wherein the learned Judge while dismissing the suit for maintenance had recorded findings that Dhani Devi, mother of the plaintiff/appellant was living an unchaste life and that was the reason for dismissing the suit for maintenance instituted by the mother of plaintiff/appellant against deceased testator Doom Ram. Therefore, the learned Appellate Court held that there was an explanation as to why the plaintiff was excluded from inherence by Doom Ram and the ''Will'' being proved to be valid in accordance with law and having been registered, the disinheritance of the plaintiff was not all that material to doubt validity of the ''Will''. The learned Appellate Court further held that the contention of the plaintiff that the property situate in village Dahnoo was not ancestral property but self acquired property of deceased testator was also not proved by the plaintiff. Similar was the findings returned by the learned Appellate Court with regard to property at village Malthar. Accordingly, the Appellate Court upheld the judgment passed by the learned Trial Court and dismissed the appeal filed by the plaintiff.
11. I have heard learned counsel for the parties and also gone through the records of the case as well as judgments passed by learned Courts below.
12. Order 20, Rule 5 of the Code of Civil Procedure (CPC) provides that Court has to state its finding or decision on each issue. As per the said provision, in a suit in which issues have been framed, the Court has to state its findings and judgment with reasons upon each separate issue unless the findings upon any one or more of the issue is sufficient for the decision of the suit.
13. The learned Trial Court in the present case framed, in all, eight issues. A perusal of the judgment passed by the learned Trial Court demonstrates that issues No.1 to 4 and 4-C were discussed together by it, whereas issue No. 4-A and 4-B were discussed separately. A perusal of the judgment passed by the learned Trial Court further demonstrates that it has dwelled on all aspects of the matter in its judgment which were covered in issues No. 1 to 4 and 4-C in para 6 to 16 of the judgment.
14. It has been held by the Hon''ble Supreme Court in State of Karnataka v. Registrar General, High Court of Karnataka, (2000) 7 Supreme Court Cases 333 that judicial disposition is definitely different from a paper presented for seminar discussion nor it can be equated with a dissertation. Judicial decorum requires that judgments and orders should confine to the facts and legal points involved in the particular cases which Judges deal with under Order 20, Rule 5 . It is mandatory that reasons upon each separate issue and all distinct issues have to be answered by the findings supported by reasons.
15. This Court has held in Jabbar Singh v. Shanti Swaroop, 2007 HLJ 192 that normally the Court should decide the issues together but if some common question of law and fact is involved, which would involve the repetition of evidence, the Court can decide such issues together. This Court has further held in Hiru v. Mansa Ram, 2003 (1) Cur.L.J. 133 that there is no bar in Code of Civil Procedure for clubbing the issues together, if the evidence related to them is common and the case cannot be remanded on the ground that the issue can be clubbed together.
16. When I judge the judgment passed by the learned Trial Court on the said basis, it is clear and evident from the findings returned by the learned Trial Court that though issues No. 1 to 4 and 4-C have been discussed together, however, the learned Trial Court has answered all the said issues by returning findings on the same which are duly supported by reasons. Issue No.1 whether the property in dispute was ancestral in nature qua plaintiff and Doom Ram deceased as alleged has been answered by the learned Trial Court by holding that part of the suit property was ancestral in nature qua the plaintiff and deceased Doom Ram. Similarly the second and third issue whether the property in dispute was joint Hindu family property and plaintiff is Class-I heir of deceased Doom Ram and whether the plaintiff is entitled to confirmation of joint possession of the property in dispute have also been answered with reasons by the learned Trial Court, as is evident from the findings returned in para 8 to 10 of the judgment passed by the learned Trial Court. The learned Trial Court has categorically held in para 12 of the judgment that the plaintiff has established that the land situated in village Pargi and Nalwari is joint Hindu family property and plaintiff has failed to prove that the land situated in village Dahnoo, Tanda, Galma and Malthar was joint Hindu family and co-parcenary property. Similarly, Issue No.4 whether deceased Doom Ram executed a valid will in favour of the defendants No.1 to 4 has also been dealt with in detail in para 13 to 15 of the judgment passed by the learned Trial Court and on the basis of discussions returned in these paras, the learned Trial Court has concluded that the ''Will'' executed by Doom Ram was a valid ''Will'' in respect of self acquired property of Doom Ram and further that the same was to take effect to the extent of his share in respect of the ancestral and co-parcenary property. Issue No. 4-C, whether the defendants No.1 to 4 have become owners of the shares of other co-sharers by way of adverse possession has also been dealt with in para 16 of the judgment passed by the learned Trial Court in detail. The learned Trial Court has held that it cannot be said that the defendants have acquired title to the suit property discussed therein by virtue of adverse possession.
17. In fact on the basis of the discussions held in these paras, the learned Trial Court held that the plaintiff was son of late Doom Ram and lands situated in Mauza Pargi and Nalwari were joint Hindu family and co-parcenary property and plaintiff had 1/7th share therein and as such the plaintiff is joint owner of possession of the suit property and entitled to decree for confirmation of joint possession over the aforesaid land and rest of the land is self acquired property of Doom Ram and he had executed ''Will'' in favour of defendants No.1 to 4 and as such the ''Will'' is valid qua his 1/7th share in respect of the land situated in Mauza Pargi and Nalwari and is valid qua lands measuring 12-17-12 bighas and 63-2-0 bighas. Similarly, issue No. 4A and 4B were discussed and decided separately by the learned Trial Court and both these issues have been decided against the defendants and in favour of the plaintiff.
18. From what has been discussed above, it cannot be said that there has been non-compliance of provisions of under Order 20, Rule 5 CPC by the learned Trial Court, keeping in view the fact that this Court has already dealt with the first substantial question of law on merit, therefore, the second substantial question of law needs no further adjudication. The substantial questions of law are answered accordingly.
19. During the course of arguments, it has been urged on behalf of the appellants that the judgments passed by both the learned Courts below were liable to be set aside because both the learned Courts below have erred in not appreciating that there was no valid ''Will'' executed by deceased Doom Ram in favour of the defendants. It was contended on behalf of the appellants that the ''Will'' was not proved in accordance with law by the defendants who were the beneficiaries of the same and keeping in view the fact that in the case of a ''Will'' the onus is on the benefactor to prove the same, the learned Courts below erred in holding that the alleged ''Will'' executed by late Doom Ram was a valid ''Will'' in the absence of the same having been proved as per the provisions of Indian Succession Act.
20. On the other hand it was submitted on behalf of the respondents that the factum of deceased Doom Ram having executed a valid ''Will'' in favour of the defendants has been upheld by both the learned Courts below, therefore, there being a concurrent finding of fact returned in this regard, the same did not warrant any interference in the second appeal especially and more so in view of the fact that there was no substantial question of law framed in this regard.
21. Mr. G.D. Verma, learned Senior Counsel appearing for the appellants has argued that a perusal of the record of the learned Trial Court will demonstrate that the ''Will'' in issue was not proved in consonance with the provisions of Section 68 of the Indian Evidence Act. According to him, simply by tendering the documents which were exhibited in the previous case, i.e. in Civil Suit No. 137 of 1983 decided on 16.6.1986 the onus of proving the ''Will'' cannot be said to have been discharged by the defendants. It was further argued by Mr. Verma that scribe of the ''Will'' was not produced in the court by the defendants and because the best evidence was withheld by them, therefore, adverse inference should have been drawn against the defendants by the learned Trial Court. Mr. Verma has relied upon the following judgments:-
1. Kamlesh Rani v. Balwant Singh, 2010 (3) Shim. LC 91 and 141;
2. S.R. Srinivasa and others v. S. Padmavathamma, (2010) 5 Supreme Court Cases 274;
3. M. Chandra v. M. Thahgamuthu and another, (2010) 9 Supreme Court Cases 712;
4. U. Sree v. U. Srinivas, (2013) 2 Supreme Court Cases 114; and
5. Prem Kumar v. Tek Singh, 2013 (2) Shim. LC 1153.
22. On the other hand, Mr. N.K. Thakur, learned Senior Counsel appearing for the defendants has argued that as per the records the present appellant/plaintiff himself was a party in Civil Suit No. 137/83 and he was impleaded as defendant No.7 in the same which suit in fact was initiated by none else but his real brother Damodar Dass, copy of which is on record as Ext. DA. Mr. Thakur has also argued that the present appellant moved an application under Order 1, Rule 10 CPC, Ext. DB, in the said case praying therein that he may be allowed to array as plaintiff in the above suit but the said application of his was rejected vide order Ext. DC. Mr. Thakur has also drawn the attention of this Court to Ext. DF which is a statement given by the present appellant as PW4 in the suit which was instituted by his brother Damodar Dass. Mr. Thakur has also stated that the judgment so passed by the learned Trial Court in the case instituted by the brother of the present appellant was compromised in appeal. Mr. Thakur has accordingly argued that keeping in view the fact that the validity of the ''Will'' already stood adjudicated upon by a competent Court of Law in civil proceedings in which the present appellant was also a party, he cannot be permitted to say that the validity of the said ''Will'' has not been proved in accordance with law by the present respondents/defendants before the learned Trial Court in the present case. Mr. Thakur has further argued that a perusal of the averments made in the plaint filed by the present appellant/plaintiff will demonstrate that he has not approached with the court with clean hands. In para 5 of the plaint he has stated that when mutation was carried out on the basis of the ''Will'' executed by Doom Ram, he did not appear in the mutation proceedings, whereas it stands established on record that he was not only aware of the mutation proceedings but was also present during the said proceedings. He has further argued that the appellant/plaintiff has stated further in para 5 of the plaint that in the suit instituted by his brother the ''Will'' was declared null and void, whereas fact of the matter is that the learned Trial Court in that case had returned finding that Doom Ram had executed a valid ''Will'' on 14.3.1969. Accordingly, he has submitted that there was neither any force nor any merit in the contention which had been raised in the present appeal by the appellant with regard to the ''Will'' not having been proved in accordance with law by the defendants before the learned Trial Court.
23. This Court in Shri Pawan Kumar and others v. Shri Tilak Raj and another 2010 (3) Shim. LC 91 has held that a gift-deed is a document which requires the attestation of two or more witnesses. Section 3 of the Transfer of Property Act defines the essential conditions of a valid attestation which were found absent in that case.
24. Similarly, this Court in Kamlesh Rani v. Balwant Singh 2010 (3) Shim. LC 141 has held that document which requires formal proof cannot be tendered in evidence and no presumption of correctness is attached to it simply because other party has not objected to its tendering in evidence.
25. In my considered view the said judgments have no bearing on the facts of the present case because of the reason that here is a case in which the present appellant was himself a party in the suit in which all the documents were tendered and proved in accordance with law. The appellant herein had the opportunity to cross-examine the relevant witnesses in the said civil suit and also to assail the veracity of the documents. Fact of the matter remains that the ''Will'' has been held to be a valid ''Will'' in those proceedings and in view of this matter the judgments referred to above are of no assistance to the appellant.
26. The Hon''ble Supreme Court in S.R. Srinivasa and others v. S. Padmavathamma, (2010) 5 Supreme Court Cases 274 has reiterated the principles laid down by it in H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 in the matter of proof of ''Will''.
27. Similarly, the Hon''ble Supreme Court in M. Chandra v. M. Thangamuthu and another, (2010) 9 Supreme Court Cases 712 has held that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in exceptional cases will secondary evidence be admissible. It has further held that if secondary evidence is admissible, it may be adduced in any form in which it may be available whether by production of a copy, duplicate copy of a copy by oral evidence of the contents or in another form. It has further held that the secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.
28. The Hon''ble Supreme Court in U. Sree v. U. Srinivas, (2013) 2 Supreme Court Cases 114 has held that mere admission of a document does not amount to its proof and it is the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.
29. This Court in Prem Kumar v. Tek Singh, 2013 (2) Shim. LC 1153 has held as under:-
"13. It may be seen that subsequently the Apex Court in M. Chandra v. M. Thangamuthu, (2010) 9 SCC 712, has been held as follows:-
"47. � It is true that a party who wishes to reply upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party".
14. The aforesaid view has been reiterated in U. Sree v. U. Srinivas (2013) 2 SCC 114.
15. As already noticed earlier, the plaintiff in support of the application has stepped into the witness box and has categorically deposed that the original Will was destroyed by the concerned Revenue office at the time when the record pertaining the mutation was weeded out in accordance with the procedure established by law.
16. Plaintiff has been able to show sufficient reasons for non-production of the original document. The said document is not in his possession, which fact stands corroborated by the testimony of another witness Shri Mohan Singh (AW-1), who has produced the record from the Revenue Office.
17. For the purpose of leading secondary evidence, the Court has to form an opinion about the loss of the document and not with regard to its existence. In the instant case, the Court below has come to this conclusion and hence rightly allowed the plaintiff to lead secondary evidence."
30. In my considered view, the above judgments relied upon by the learned counsel for the appellant do not have any bearing on the merits of the present case. It is not the case of the appellant that he was a stranger as far as the civil suit filed by his brother is concerned. It is not a case where the documents exhibited in that suit which have been relied upon by the present respondent before the learned Trial Court in the present case have taken the present appellant by surprise, as appellant was a party defendant in that civil suit and the proceedings therein took place in his presence. It is a matter of record that he has deposed as a witness in that case. His applications and statement made by him in that case have also been relied upon by the present respondent before the learned Trial Court in the present case. Therefore, keeping in view this aspect of the matter that the present appellant was a party in the previous case instituted by his brother, it cannot be said that the documents etc. tendered therein including the statements made by various witnesses could not have been relied upon by the learned Trial Court in the present case.
31. A perusal of the judgment passed by the learned Trial Court will demonstrate that it has dealt with the validity of ''Will'' dated 5.3.1969 in para 13 and 14 of the said judgment. On the basis of the material on record, the learned Trial Court has held that the defendant while deposing as DW2 has stated that the ''Will'' executed by Doom Ram dated 5.3.1969 was scribed by Badri Dass and witnesses by Roop Singh and Panna Ram and both of said witnesses were since dead. The learned Trial Court has further taken into consideration Ext. DD to DR which are copies of statements of Badri Dass the scribe of the ''Will'' and Param Ram the witness of the execution of the said ''Will'' which was recorded in the earlier suit filed by the brother of the present appellant/plaintiff. The learned Trial Court has also dealt with the statement of the present appellant/plaintiff in which the plaintiff himself has admitted the execution of the will by Doom Ram. The learned Trial Court has also taken note of the fact that present appellant while appearing as PW4 in the previous suit filed by his brother has also admitted about the execution of the ''Will'' by late Doom Ram. Taking into consideration all these aspects of the matter, the learned Trial Court concluded that there was a valid ''Will'' executed by Doom Ram in favour of defendants No.1 to 4.
32. The learned Appellate Court has also minutely dealt with all these aspects of the matter and thereafter it has concluded that there was no infirmity with the findings returned by the learned Trial Court to the effect that there was a valid ''Will'' executed by Doom Ram in favour of defendants No.1 to 4.
In my considered view, there is no merit in the contention of the appellant that the said ''Will'' executed by Doom Ram has not been duly proved by the defendants in accordance with the provisions of Section 68 of the Indian Evidence Act before the learned Trial Court, in view of the fact that in previous legal proceedings instituted by the real brother of present appellant in which the appellant was also a party and which case was also pertaining to the same ''Will'' and was filed against the defendants No.1 to 4, there was a finding returned that the said ''Will'' executed by Doom Ram was a valid ''Will'' and the learned Trial Court (in the present case) relying upon the documents produced by the defendants pertaining to the earlier suit has returned the findings that the ''Will'' so executed by late Doom Ram in favour of defendants No.1 to 4 was a valid ''Will''. In my considered view as the present appellant was a party in the said civil proceedings, he cannot be permitted to agitate the findings returned by the learned Trial Court with regard to the validity of the ''Will'', on the grounds which have been raised in the present appeal. Furthermore, when both the learned Courts below have concurrently held that the ''Will'' executed by late Doom Ram was a valid ''Will'', there is no reason as to why this concurrent finding should be interfered with by this Court when the appellant has not placed any material on record from which it can be inferred that the said findings returned by the learned Trial Court and confirmed by the Appellate Court are not borne out from the records of the case. As a result of the findings recorded herein above, I do not find any merit in the present appeal and the same is dismissed with cost.
