1. Being aggrieved and affected by the impugned order dated 27th April, 1993 passed by the 4th Additional District Judge, Nashik (for short, "the Trial Court"), the appellant’s application for grant of probate in pursuance to the later registered Will executed by the deceased Zipru Punja Bhil of village Bhingare, Tq. Yeola, District Nashik, dated 01/09/1990 rejected and by the same order the counter claim of the respondents (original opponents) have been allowed and that resulted into the grant of probate based upon the registered Will of the deceased dated 05/06/1979 (the 1979 Will) and the Court has accordingly issued probate in favour of original opponent Nos. 1 to 3 (respondents 1 to 3). Therefore the present appeal.

2. On 05/06/1979, the deceased Zipru Punja Bhil executed a Will dated 05/06/1979 in favour of respondent Nos. 1 to 3 and bequeathed property bearing Gat No.7 admeasuring 2H S R situate at Village Bhingare, Taluka - Yeola, District-Nashik.

3. On 01/09/1990, it is the case of the appellant that deceased Zipru Punja Bhil, executed a Will dated 01/09/1990 in his favour.

4. On 05/01/1991, therefore, the appellant preferred a Civil Miscellaneous Application No. 8 of 1991 for probate.

5. On 10/09/1991 a Counter claim filed by respondent Nos. 1 to 3 for the probate of the Will dated 05/06/1979.

6. The appellant did not file any response and or opposition to the said counter claim. Therefore, the counter claim as raised and filed by the respondents remained unchallenged. The appellant has led the evidence of himself and one P.W.2 Mr. Popat Chandrakant Kahar an attesting witness and also Mr. Gopal Dattatraya Kulkarni, P.W.3 scribe.

7. Respondent/opponent No.1 led the evidence of himself (Mr.Jayram Barde) and one Mr.Vishwanath Sadashiv Gade, P.W. 2 who is a police patil, P.W.3 Mr. Nivrutti Gabaji Savle is an attesting witness to the Will dated 05/06/1979.

8. After considering the rival contention of the pleadings the trial Court has framed following two issues:- 1. Whether the applicant is entitled for probate in pursuance of the will dated 01/09/1990? . No. 2. Whether the opponent Nos. 1 to 3 are entitled for probate in pursuance of the will dated 05/06/1979? . Yes. . and passed the order accordingly.

9. In the result, by the impugned order, the trial Court has granted probate in pursuance to the Will dated 05/06/1979 in favour of respondent Nos. 1 to 3.

10. In the year 1995, the appellant preferred a First Appeal No. 573 of 1995 before this High Court challenging the judgment and order dated 27/04/1993 passed in Civil Miscellaneous Application No. 8 of 1991.

11. On 19/07/2006, the Single Judge of the High Court by his order dated 19/07/2006 in Civil Application No. 2706 of 2006 in First Appeal No. 573 of 1995 directed respondent No.1 (i.e. the appellant in the First Appeal No. 573 of 1995) not to create any third party interests in respect of the suit property till final disposal of the Appeal.

12. Admittedly, the respondents counter-claim based upon the 1979 Will remained unopposed. In this way, therefore, admittedly, there was no objection of any kind even of the jurisdiction.

13. Order 8 Rule 6(A) to 6(G) of the Code of Civil Procedure (for short, "CPC") amended on 1st February, 1977, being relevant, are reproduced as under:- "6A. (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. . (2) Such counter-claim shall have the same effect as a cross-suit so as to enable th