JUDGMENT
M.M. Kumar, J.
1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, ‘the Code’), challenging concurrent findings of fact recorded by both the Courts below rejecting the registered Will dated 17.9.1986, which was set up by the plaintiff-appellant. The basic reason for rejection of the Will is that in the earlier proceedings in Civil Suit No. 859 of 1992, decided on 22.11.1994, the plaintiff-appellant was a contesting defendant and the aforementioned Will had not been proved and the suit filed by Ujjagar Singh, defendant-respondent was decreed. It is a different matter that when the judgment and decree dated 22.11.1994, was challenged before the Appellate Court, the matter was compromised vide order dated 20.11.1996 (Mark A & B). However, both the Courts have found that the findings returned with regard to the Will dated 17.9.1986 were not set aside and, therefore, the plaintiff-appellant could not have re-agitated the same matter by filing a fresh suit. The lower Appellate Court while endorsing the finding recorded by the trial Court has observed as under:
…I am unable to take exception to these observations recorded by the learned trial Court for the reason that Mark A and B being mere photostat copies are irreceivable into evidence and if so, the judgment, Ex. D3, and decree-sheet, Ex. D4 will have to be deemed to have assumed finality.
The lower Appellate Court then proceeded to examine the validity of the Will in the light of the evidence produced by the plaintiff-appellant in the suit from which the instant appeal has arisen. It is concluded that requirements of Section 63(c) of the Indian Succession Act, 1925 (for brevity, ‘Succession Act’), have not been fulfilled. The view of the learned lower Appellate Court in this regard is discernible from perusal of para 12 of its judgment and the same reads as under:
12. In this case, only Amarjit, PW3, marginal witness of the disputed Will Ex.P1, has been examined. As is borne out from the testimony of Amarjit, PW3, the other attesting witnesses of the said Will was Dharamvir Lamberdar, who has since died and that we all witnesses were present and that Tara Singh was present, at the time of their attestation. This witness has no where stated that Tara Singh had thumb marked the disputed Will in their presence. Thus, requirements of Section 63(1) of the Indian Succession Act, 1925, do not appear to have been fulfilled. Towards the end of his chief examination, this witness has stated that he was on visiting terms with Dharamvir Lamberdar with whom, Tara Singh was on visiting terms and so he had known Tara Singh. Dharam Paul Deed writer, PW1, the scribe of the Will, Ex.P1, has stated in his cross-examination that he did not know the executant and the witnesses personally. In the previous suit, the said witness, Amarjit had stated that he was not personally known to the testator and that the testator was known to him through Dharamvir Lamberdar and similar position appears to be there. So, if the matter is viewed from this angle, even then, it has to be held that due execution of the Will Ex. P.1 is not proved. The Sub Registrar, who had registered the Will, has also not been examined.
2. Mr. B.S. Bali, learned Counsel for the plaintiff-appellant has argued that heavy reliance on the findings recorded in the earlier Civil Suit No. 859 of 1992, decided on 22.11.1994 (Ex. U3) has been illegally placed by both the Courts below while discarding the registered Will set up by the plaintiff-appellant. According to the learned Counsel once the Appellate Court has accepted the compromise then the findings recorded in Ex. D3, should be deemed to be washed off and no notice of the same could have been taken. Learned counsel has insisted that the Courts below should have examined the evidence in detail led by the plaintiff-appellant without being influenced by the judgment and decree dated 22.11.1994 as the same stood merged in the order of compromise dated 20.11.1996 (Mark A and B).
3. Mr. K.G. Sehajpal, learned Counsel, for the defendant-respondents has submitted that the view taken by the Courts below is based on sound proposition of law namely that the findings are not wiped out and the matter could not be re-agitated once again by the plaintiff-appellant. According to the learned Counsel, the compromise, which is subject matter of the order dated 20.11.1996 (Mark A and B) before the District Judge, Jalandhar, cannot be interpreted to mean that the findings recorded in the judgment dated 22.11.1994 (Ex. D3) have been set aside.
4. Having heard the learned Counsel for the parties, I am of the considered view that this appeal is devoid of merit and is, thus, liable to be dismissed. It is well settled that once an issue has been raised, evidence is led and the findings have been recorded, then in any subsequent proceedings when the same issue is raised again, then the evidence produced earlier along with the findings are not recorded irrelevant to determine the controversy in the subsequent proceedings. The aforementioned principle is based on sound public policy because otherwise in any subsequent proceedings, the question of earlier adjudication would become irrelevant and all issues can be reopened resulting into multiplicity and vexatious litigation. The question is not res Integra. The legal proposition that the earlier judgment and decree would be relevant in subsequent proceedings and the findings recorded therein cannot be wiped out came up for consideration of the Supreme Court in the case of Ram Prasad v. Assistant Director of Consolidation 1994 Supp.(2) S.C.C. 228. In that, the Civil Court has recorded the finding that the decree obtained earlier was collusive and fraudulent. The aforementioned finding was affirmed in appeal. However, when the second appeal was pending, by operation of law and the issuance of notification under Section 5 of the U.P. Consolidation of Holdings Act, 1953, the proceedings stood abated. In the consolidation proceedings, the evidence and the findings of the trial Court as well as that of the Appellate Court that the earlier decree was collusive and fraudulent, were relied upon. The Supreme Court found that the earlier findings were relevant despite the fact that the jurisdiction of the Civil Court were barred and the proceedings had abated. The view of their Lordships’ is discernible in para 8 of the judgment and the same reads as under:
8. Undoubtedly no fresh evidence was adduced in the proceedings before Consolidation Officer except the judgments and decrees of the civil Court and the appellate Court. The authorities under the Act held that though the civil suit stood abated, the evidence considered by the civil Court and the findings recorded therein would be available for consideration and can be relied upon. We find that the view taken by the authorities is well justified. Though the suit stood abated, yet the evidence recorded in the suit or appeal and the findings recorded by civil Courts do not get wiped out; are entitled to be considered and that, therefore, it being the relevant evidence the authorities under the Consolidation Act, unless contrary evidence is established, could go into the evidence and were entitled to rely upon the findings recorded by the Civil Courts in support of its conclusions. Undoubtedly the tribunals below had gone into the question and held that the decree obtained by the respondent was collusive and fraudulent decree and that, therefore, it does not bind the appellants.
5. The lower Appellate Court in any case has also examined the evidence led by the plaintiff-appellant in the subsequent suit from which the instant appeal has arisen and found that the Will did not answer the requirement of Section 63(c) of the Succession Act, inasmuch as, the only marginal witness of the disputed Will, Shri Amarjit, PW3, has failed to make a statement that the testator has thumb marked the Will in his presence and in the presence of other attesting witnesses. It is well settled that under Section 63(c) of the Succession Act, the Will is required to be attested by two witnesses mandatorily, although under Section 68 of the Evidence Act,1872, both the attesting witnesses are not required to be produced. However, it is significant to note that one attesting witness examined, has to prove the execution of the Will in terms of Clause (c) of Section 63 of the Succession Act viz. attestation by two attesting witnesses in the manner contemplated therein. It must specify the attestation of a Will by him and the other attesting witness in order to prove that there was due execution of the Will, The aforementioned view has been taken by the Supreme Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam , In the present case, the Will has not been proved by the attesting witnesses as contemplated by Section 63(c) of the Succession Act. Therefore, even on the analysis of the evidence adduced in the instant suit from which the present appeal has arisen, the plaintiff-appellant has failed to prove the Will. Hence, there is not merit in the appeal.
6. For the reasons aforementioned, this appeal fails and the same is dismissed.