ORDER
V.K. Jhanji, J.
1. This is plaintiff’s second appeal directed against the judgment and decree of the Courts blow dismissing his suit for declaration to the effect that the plaintiff is owner of suit land and defendants have no right or interest therein.
2. The dispute in this case is in regard to the estate of Baj Singh Only.
3. In brief, the facts are that Gulab Singh had two sons, Sunder Singh and Kishan Singh. Sunder Singh had a son, Baj Singh who died issuless in 1967. Kishan Singh had two daughters, namely, Jasso and Dhanno (respondents herein). On the death of Baj Singh, property owned by him was inherited by defendants Jasso and Dhanno and mutation dated 17.4.1968 was sanctioned in their favour. Accordingly, defendants Jasso and Danno became owners in equal shares of property which originally belonged to Gulab Singh. Pal Singh plaintiff filed appeal against order of mutation before the Collector but the same was dismissed it is thereafter that the suit out of which present second appeal has arisen, was filed by Pal Singh for declaration that he is owner in possession of suit land and defendants Jasso and Dhanno had no right or interest in the suit land. He alleged that Baj Singh had executed Will dated 26.9.1958. He further alleged that he used to reside with Baj Singh and in lieu of services rendered by him to Baj Singh, the latter executed Will in his favour bequeathing his right in the suit property in his favour.
4. Before notice of the suit could be served upon the defendants, Dhanno sold her share in the property to one Gurnam Singh vide registered sale deed dated 14.4.1969. Likewise Jasso also executed an agreement to sell in favour of Gurnam Singh. Later on, on the basis of this agreement, Gurnam Singh filed suit for specific performance and a decree was passed in his favour. In execution of said decree, sale deed was executed in his favour. This is how Gumam Singh became owner of the shares belonging to Jasso and Danno.
5. Upon notice of the suit filed by Pal Singh, defendants Jasso and Dhanno filed written statement denying that Pal Singh was residing with Baj Singh. They stated that Pal Singh had no relation with Baj Singh nor Baj Singh executed Will dated 26.9.1958. They submitted that mutation of inheritance of Baj Singh was sanctioned in favour of the defendants and vide order dated 17.4.1968 of the Collector, appeal filed by Pal Singh was dismissed. They further stated that Baj Singh during his life time executed two sale deeds dated 21.3.1955 and 1.4.1955 and in both the sale deeds, he had put in his thumb impression and, therefore, his signatures on the Will are totally forged and the Will was got prepared in connivance with the attesting witnesses of Will in order to grab the land of Baj Singh.
6. Trial Court, on the pleadings pf the parties, framed necessary issues and one of the issues was whether Baj Singh executed a valid Will in favour of the plaintiff. On appreciation of evidence adduced by the parties to the suit, trail Court found that Pal Sigh had no relation with Baj Singh nor did he render any services to him. He was also not found to be in possession of the suit land. Finding various suspicious circumstances surrounding the execution of the Will, trial Court not only held that Will set up by Pal Singh is not a genuine document but also held that the suit filed by him for declaration simpliciter is not maintainable because he is not in possession of the suit land. Pal Singh preferred first appeal which was dismissed on 18.7.1988 for non-prosecution. He filed an application dated 28.4.1989 for restoration of appeal but the application was dismissed on 25.1.1994. Against order dismissing his application for restoration of fist appeal, he filed Civil Revision No. 2382 of 1994 in this Court.
7. During the pendency of the civil revision, an application was filed by him stating that the defendants have entered into a compromise with him and they have admitted the genuineness of (he Will alleged by have been executed by Baj Singh and, therefore, Civil Revision may be allowed and suit decreed on the basis of the admission made by the defendants. This Court, vide order dated 12.7.1995 disposed of the civil revision and directed the first Appellate Court to restore the appeal and dispose of the same by taking into consideration the compromise set up by the parties to the suit.
8. On remand of the case, Gurnam Singh to whom defendants had already transferred the suit land filed an application under Order 1 Rule 10 of the Code of Civil Procedure for being impleaded as a party to the appeal. He contended that defendants have no right to enter into compromise with the plaintiff or admit the execution of the Will as they have already transferred their title and right in the suit land to him. He accordingly made a prayer that he be impleaded as a party to the appeal so as to enable him to contest the appeal. In the meantime, plaintiff filed an application under Order XXIII Rule 3 of the Code of Civil Procedure for recording the compromise. Learned Additional District Judge vide order dated 17.2.1997 dismissed the application filed by the plaintiff under Order XXIII Rule 3 of the Code for deciding the appeal on the basis of the compromise. Additional District Judge was of the view that the trial. Court after hot contest between the parties dismissed the suit of the plaintiff on having found that the Will in question is forged and fictitious document. He further found that Dhamno defendant had already sold land falling to her share to Gurnam Singh through decree for specific performance of agreement to sell duly executed by Jasso through Court. Gurnam Singh became owner of share of Jasso and it is now Gurnam Singh who is the owner of the suit land and defendants have been left with no saleable interest in the suit land. He opined that entering into compromise by the plaintiff and defendants shows that it has been entered unlawfully with some ulterior motive to defeat the rights which have accrued to Gurnam Singh and nullify the verdict of trial Court. He was also of the view that without impleadina Gumam Singh compromise in question cannot be said to be a valid and lawful compromise as that would defeat his right in the suit land.
9. As regards application filed by Gurnam Singh under Order 1 Rule 10 of the Code of Civil Procedure for being impleaded as a party in the anneal first Appellate Court said that he cannot be added as a party at the stage of appeal as it would complicate the matter. He was also of the view that since the appeal is not being decided on the basis of compromise, no prejudice is going to be caused to Gurnam Singh. After disposal of these two application, first Appellate Court vide judgment and decree of even date dismissed the appeal by a detailed judgment as he did not find any error/illegality in the finding of trial Court in regard to the issue of Will as also other issues. Hence this second appeal.
10. Initially second appeal came up for hearing before T.H.B.Chalapathi, 3. on 1.4.1998 for motion hearing. On the said date, learned counsel appearing on behalf of the appellant submitted that the application was filed to record the compromise under Order XX11I Rule 3 of the Code but without deciding the said application, appeal on merits has been decided by the learned Additional District Judge. Since in the judgments passed on merits, there was no reference to order passed on application under Order XXIII Rule 3 of the Code, second appeal was admitted and explanation was also sought from the Learned Additional District Judge as to why and under what circumstances he ignored the application filed for recording the compromise. As directed, the Additional District Judge submitted his explanation vide letter daied 16.4.1998. He explained that application under Order XXIII Rule 3 of the Code in respect of the compromise entered into between the parties was dismissed vide separate detailed order running into eight pages on 17.2.1997. He also enclosed certified copy of the order passed by him on the said application. He submitted that since on the basis of separate application for compromise, separate order was passed and in order to avoid repetition, the same was not incorporated in the judgment which was also announced on the same date. Record of first appeal as well as trial Court was summoned and on perusal of the same, I find that on 17.2.1997, Learned Additional District Judge not only decided the appeal on merits but prior thereto decided two applications i.e. one filed by the plaintiff under Order XXIII Rule 3 of the Code for recording the compromise and the second under Order 1 Rule 10 of the Code filed by Gurnam Singh for being impleaded as party to the appeal. This being the position apparent on the face of the record, representation made by learned counsel for the appellant when appeal was admitted, was not correct.
11. Today, another counsel, namely, Mr. J.S.Gill, Advocate has appeared on behalf of the appellant and submitted that since copy of order passed on the application under Order XXIII Rule 3 of the Code had not been supplied, counsel’, was under the impression that probably no order on the said application had been passed. Be that as it may, I have heard the learned counsel for the appellant on merit i.e. the legal representative of Pal Singh who has sines died, on the merits of the appeal.
12. The only submission of learned counsel appearing on behalf of the appellant is that Gurnam Singh to whom property was sold during the pendency of suit, cannot ob-ject to the recording of the compromise in a suit which was between plaintiff Pal Singh and defendants Jasso and Dhanno. He contended that Gurnam Singh being transferee lis pendens, cannot be heard to say that the compromise is unlawful and will defeat his rights.
13. I, however, find no merit in this contention of the learned counsel or the appellant.
14. As noticed earlier, upon notice of suit, defendants Jasso and Dhanno denied the execution of Will and on the basis of the pleadings, issue in regard to execution of Will in favour of plaintiff Pal Singh by Baj Singh was framed and parties led evidence in support of their pleadings. On appreciation of the evidence adduced by their parties, trial Court recorded a firm finding of fact that the Will set up by Pal Singh is a forged and fictitious documents. Defendants Jasso and Dhanno had already sold the property to Gurnam Singh vide registered sale deed and agreement to sell which subsequently resulted into a decree and in pursuance thereof, sale died was executed in favour of Gurnam Singh. Any admission made in regard to the genuineness of the Will by the defendants who had been left with no saleable/transferable interest in the suit land cannot render the Will to be a genuine one. It is now well settled that in cases where the execution of Will is shrouded in suspicion, its proof ceased to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceedings, becomes in such cases a matter of the Court’s conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will.
15. In this case, both the Court below have held the Will to be a forged and fictitious documents as the propounder had failed to lead cogent and convincing evidence surrounding its execution. In this second appeal, counsel appearing on behalf of the plaintiff has also not been able to advance argument worth considering regarding the findings of the Courts below in respect of Will.
Consequently, this appeal has no merit and the same is hereby dismissed with costs.
Costs are quantified as Rs. 5,000/-.