JUDGMENT

Nidhi Gupta, J.

Present Revision Petition has been filed by the defendant No. 2 seeking quashing of impugned order dated 31.01.2017 (Annexure P4) passed by learned lower Appellate Court vide which petitioner's application under Order 41, Rule 27 CPC for leading additional evidence has been dismissed.

2. Brief facts of the case are that respondent No.1/plaintiff had filed a Suit for declaration with consequential relief of permanent injunction, that plaintiffs and defendants are owners-in- possession in equal share of the suit property, and Will dated 21.08.2006 executed by late Sh. Madan Mohan in favour of defendants No.1 and 2 is illegal and not binding on rights of the plaintiff as suit property is ancestral in nature.

3. The petitioner along with other defendants/respondents No.2 to 4 herein filed written statement and contested the Suit and inter-alia, pleaded that there is no Joint Hindu Family with the plaintiff, as the same was severed after the plaintiff got separated from his father late Sh. Madan Mohan almost 30 years ago.

4. It was further pleaded that suit property was acquired by father of the parties late Sh. Madan Mohan, who had acquired the suit property by way of Civil Court decree dated 09.04.1970, and therefore, it was clear that suit property was not ancestral. It is further pleaded that Will dated 21.08.2006 was executed by late Sh. Madan Mohan in his good senses and of his own free will in favour of defendants No.1 and 2/proforma respondent No.2 and petitioner herein respectively.

5. Learned trial Court vide judgment and decree dated 01.09.2014 (Annexure P1) decreed the Suit in favour of plaintiff and held that plaintiff is entitled for declaration and injunction as prayed for. Against the said judgment and decree, the petitioner filed Civil Appeal No.455 of 2014. It is in the said appeal, that the petitioner has filed the present application under Order 41, Rule 27 CPC dated 30.09.2014 (Annexure P2) seeking permission to lead additional evidence to produce one of the attesting witnesses of the said Will dated 21.08.2006, as 'inadvertently' the said witness could not be produced before the learned trial Court. Plaintiff filed reply to said application; and vide order dated 31.01.2017, learned lower Appellate Court has dismissed the said application of the petitioner seeking to lead additional evidence. Hence, present Revision Petition.

6. It is submitted by learned counsel for the petitioner that Will dated 21.08.2006 executed by late Sh. Madan Mohan father of the petitioner, is a legal document as it was duly registered. It is submitted that the said document has a great bearing on the issue in question and therefore, it is imperative that the petitioner be permitted to lead additional evidence by producing an attesting witness to the Will as doing so will establish the authenticity of the Will in question which is very necessary for proper adjudication of the matter. Learned counsel for the petitioner refers to application under Order 41, Rule 27 CPC filed by him to submit that it has been categorically stated by the petitioner that attesting witness of the Will dated 21.08.2006, could not earlier be examined by leading evidence before the learned trial Court, though the Will was duly accepted on file and registration of the Will was duly proved by summoning witness from Registering Authority. It is further submitted that this issue is of grave importance to the matter at hand, yet, the learned trial Court failed to frame a specific issue in this regard.

7. It is further submitted that the Will in question goes to the root of the cause/issue