U.C. Dhyani, J.(Oral)

Present second appeal has been preferred by defendant no. 1-appellant being aggrieved against judgment and decree dated 01.09.2006, whereby the appeal preferred by plaintiff-respondent no. 1 was allowed and the judgment and decree dated 13.02.2003, passed by learned Civil Judge (Sr. Div.)/trial court was set aside. Plaintiff’s suit for permanent prohibitory injunction was decreed. The defendants were directed to restrain themselves from interfering into the possession of the suit property. Aggrieved against the same, defendant no. 1 has preferred the present second appeal.

2. A perusal of the trial court judgment will indicate that suit of the plaintiff (respondent no. 1 herein) was dismissed. It is not necessary to indicate herein the pleadings of the parties, inasmuch as the same will be discussed in due course at an appropriate place in the body of this judgment. Suffice will it be to say at this stage that on the basis of rival pleadings the following issues were framed by the trial court:

(i) Whether the plaintiff is owner in possession of the disputed property?

(ii) Whether the suit is undervalued and court fee paid is insufficient?

(iii) To what relief, if any, is the plaintiff entitled?

3. The trial court considered the oral and documentary evidence and held, on the basis of such evidence, that the plaintiff has failed to establish that he was the owner of the suit property. The second issue was already decided as preliminary issue. The trial court also observed that the plaintiff failed to prove the Will dated 08.12.1993. The trial court has observed that the defendant no. 1 has succeeded in establishing that a Will was executed on 14.12.1993 in favour of defendant no. 1. The Will dated 14.12.1993 is the last Will and, therefore, the plaintiff was not entitled to any relief.

4. As stated earlier, the judgment and decree passed by the trial court was challenged before the lower appellate court, who found that the plaintiff was owner in possession of the suit property. The disputed property was the self acquired property of Swami Ram Kishor Maharajji and since he executed a Will in favour of the plaintiff, who is owner in possession of the disputed property, therefore, the plaintiff was entitled to the relief of permanent prohibitory injunction. Learned lower appellate court found illegality in the judgment of the trial court and, hence, allowed the appeal and directed the defendants to restrain themselves from interfering in to the possession of the plaintiff, vide judgment and decree dated 01.09.2006.

5. When the Second Appeal was admitted on 07.11.2006, the following substantial questions of law were framed:

(1) Whether the Will dated 08.12.1993, which was alleged to have been executed in favour of the respondent no. 1/plaintiff has not been proved in accordance with the provisions of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act?

(2) Whether the last Will shall prevail over the former Will, which was executed in favour of the appellant?

6. In the meantime, the parties were directed to maintain status quo and not to create third party interest on the suit property. An application under Order XLI Rule 27 CPC was moved on behalf of the appellant to adduce additional evidence, which was dismissed by the co-ordinate bench of this Court vide order dated 01.08.2007.

7. On 19.11.2012, the third substantial question of law was framed as follows:

(3) Whether the lower appellate court failed to adjudicate upon the appeal in accordance with Order XLI Rule 31 of Code of Civil Procedure, 1908?

8. Thereafter, vide order dated 14.08.2014, passed by the co-ordinate bench of this Court, another application filed under Order XLI Rule 27 CPC read with Section 151 CPC was allowed at the instance of respondent no. 1.

9. A co-ordinate bench of this Court, vide judgment dated 25.09.2014, dismissed the Second Appeal with costs throughout. Interim order dat