Hon’ble Ajit Kumar, J.—Heard Shri H.M.B. Sinha, learned Advocate for the appellants and Shri V.K. Singh, Senior Advocate assisted by Shri S. Shekhar Advocate for the respondents.

2. This Second Appeal was admitted on 23.12.1999, on the substantial questions of law No. III as framed in the memo of appeal:

“III. Whether the lower appellate Court was justified in allowing the additional evidence at the appellate stage although none of the conditions mentioned in the Order 41 Rule 27 of the C.P.C. For production of Additional evidence in appellate Court exist in the case.”

3. Learned Senior Advocate, Shri V.K. Singh argued that said (supra) substantial question of law does not arise in the present appeal inasmuch as the substantial question of law No. III is not at all substantial question of law.

4. Coming to the basic pleading of the parties, the plaintiff-appellant herein instituted suit seeking declaratory decree in respect of three properties given in the foot of the plaint as Schedule A, B & C. The claim set up by plaintiff-appellant is that husband of the defendant No. 1 (Smt. Ramo Devi) executed Will on 2.2.1949 with free mind, and without any pressure in respect of the Scheduled properties in his favour and, therefore, on his death on 20.8.1983, he became owner of the suit properties. He further claimed to be co-partner in the business of religious rituals that used to be performed by late Mange Lal on the bank of river in Garh Mukteshwar and so he claimed to have continued in possession of the properties and thus the decree of permanent prohibitory injunction was prayed for in the suit.

5. The defendants denied all allegations of the plaint and claimed that alleged Will was fraudulently prepared for the purpose to somehow grab the entire property of late Mange Lal as the defendant No. 1 being widow of late Mange Lal was having absolute title by succession.

6. The Will was produced in original before the trial Court by the plaintiff himself from his possession and one Lallu Dutta was produced as one of the attesting witnesses to prove the Will.

7. Plaintiff further produced a letter dated 3.4.1982 written by the plaintiff to Mange Lal, the testator of the Will in which he asked Mange Lal not to make any further clarification about the rights relating to properties and not to open such issues which have already got settled by both of them mutually. The defendants claimed that this letter was written in response to a declaration got published by Mange Lal in weekly newspaper ‘Jwala’ denying signing of any document creating or bestowing any right in respect of his properties and if someone had any such document he disowned the same and declared that one might keep such document at his own risk as it would not create any right in favour of any such person.

8. The plaintiff claimed to have proved the Will as required under Section 68 of the Indian Evidence Act, 1863 as one of the attesting witnesses deposed and proved the Will before the Court and thus plaintiff claimed to have established absolute right to the suit property to the exclusion of all person including the widow, the natural successor of late Mange Lal.

9. The trial Court recorded findings of fact regarding proof of the Will in respect of scheduled properties A and B but claim regarding Schedule ‘’C’ property was rejected as it not being the property of the testator of the Will. Thus the suit was decreed in respect of Schedule A & B properties and was dismissed regarding Schedule ‘’C’ properly. The plaintiff did not prefer any appeal and thus is satisfied with the decree of the trial Court.

10. The defendants filed civil appeal under Section 96 of Code of Civil Procedure (hereinafter referred to as “Civil P.C.”) against the judgment and decree of the trial Court. At the stage of appeal after getting copy of newspaper ‘Jwala’ (relevant page) dated 14.2.1982 from the office of the publisher the appellant filed the same as additional evidence under Order 41 R