JUDGMENT :

Pankaj Jain, J.

Defendant is in second appeal against the judgment and decree passed by lower Appellate Court dated 28th of August, 2017 whereby judgment and decree passed by Civil Judge (Junior Division), Rohtak dated 31st of March, 2014 stands reversed allowing the appeal preferred by the plaintiff.

2. Parties to the suit are brothers fighting for the estate left by their father Dilawar Singh. For convenience, the parties hereinafter are referred to by their original position in the suit i.e. the appellant as the defendant and the respondent as the plaintiff.

3. Plaintiff filed suit seeking decree of declaration with the consequential relief of mandatory injunction claiming that Dilawar Singh father of plaintiff as well as defendant was owner in possession of ancestral agricultural land and other moveable and immoveable properties as mentioned in Para No.l of the plaint. Dilawar Singh was residing with defendant and his wife, who used to exercise undue influence over him. Defendant in collusion with officials of the office of the Registrar, forged and fabricated Will dated 26th of July, 2007 registered vide Vasika No.921 dated 3rd of February, 2009 in his favour. The same being result of fraud, the forged and fabricated Will needs to be declared illegal, null and void and the same has no effect on the right of the plaintiff being legal heir of Dilawar Singh.

4. Suit was contested by defendant propounding Will challenged by the plaintiff, ft was further claimed that plaintiff falsely implicated defendant and late father Dilawar Singh in a criminal case. Father Dilawar Singh, had to remain in jail for 17 days. Later on, the case was found to be based upon false allegations and resulted in cancellation report, ft was further claimed that deceased Dilawar Singh transferred his ancestral property in equal shares amongst his sons. Property mentioned in para No.l of the plaint was self acquired property of Dilawar Singh who bequeathed the same in favour of defendant by way of Will in dispute.

5. On the basis of pleadings, suit filed by the plaintiff was put to trial by framing following issues :

1. Whether the plaintiff is entitled to the decree of declaration on the grounds as averred in the plaint? OPP

2. Whether the plaintiff is entitled to the decree of mandatory injunction on the grounds as averred in the plaint? OPP

3. Whether the suit is not maintainable in the present form? OPD

4. Whether the suit is bad for non joinder of necessary parties? OPD

5. Whether the suit is barred under section 41(h) of the Specific Relief Act? OPD

6. Whether the suit has not been properly valued for the purpose of court fee? OPD

7. Relief

6. Trial Court decided issues No. 1 and 2 in favour of the defendant and against the plaintiff holding that Will dated 26th of July, 2007 registered on 3rd of February, 2009 stands proved. Both the attesting witnesses namely Raje Ram who appeared as DW4 and Promila who appeared as DW5 proved the Will. Plaintiff failed to prove the alleged forgery or fabrication.

7. Trial Court answered issue No. 3 also in favour of defendant and against the plaintiff and dismissed the suit.

8. In appeal, Lower Appellate Court reversed the findings recorded by Trial Court w.r.t. Will holding that there were major discrepancies in the testimony of the attesting witnesses which cannot be relied upon. Appellate Court further held that non-examination of scribe of the Will and Stamp Vendor is fatal to the case of the defendant. Resultantly, Lower Appellate Court reversed finding on issues No.l, 2 and 3 and allowed the appeal decreeing the suit filed by the plaintiff.

9. Counsel for the appellant while assailing the impugned judgment and decree passed by Lower Appellate Court submits that the Lower Appellate Court erred in disbelieving the Will propounded by the defendant/appellant and believing the Will dated 28th of March, 2003 propounded by the plaintiff by considering evidence which was beyond pleadings. Mr. Aggarwal further submits th