- (1.) POONAM Srivastava, J. Heard Sri K. L. Grover, learned Senior Advocate assisted by Sri Ramesh Singh, Counsel for the appellants and Sri Syed Wajid Ali, Counsel for the caveator/respondents.
(2.) THIS is defendant's second appeal. The plaintiffs/respondents instituted a suit for injunction against the appellants restraining them from interfering in the disputed property and also claiming themselves to be owner in possession. The defendants/appellants filed their written statement and claimed their right over the property on the basis of Will to be executed by one Irfan original owner. The ownership of the plaintiffs was specifically denied. The suit was decreed by the Additional Civil Judge (Senior Division) Court No. 14, Saharanpur, on 18-8-2007, which was challenged in a Civil Appeal No. 54 of 2007. The appeal was also dismissed by the Additional District Judge, Court No. 3, Saharanpur, vide judgment and decree ed 25-1 -2008. Counsel for the appellants has framed a number of substantial questions of law but advanced argument on the following substantial questions of law, which are quoted as under: " (1) Whether to prove a Will both the witnesses of the Will are required to be produced? (2) Whether a Will executed in favour of a person of different religion requires registration? (3) Whether Section 169 of U. P. Z. A. and L. R. Act, restrained some Bhoomidhar with transferable right from bequeathing his property or any part thereof since the fact of the instant case is not covered by an exception of Section (2-A) of Section 169 of U. P. Z. A. and L. R. Act?" Admitted position in the instant case is that suit for injunction was instituted by the plaintiffs/respondents but not seeking any declaration. Defence set up by the defendants/appellants was that they are owner in possession on the basis of Will. Both the Courts below recorded finding against the defendants holding that Will was not reliable.
(3.) COUNSEL for the appellants has emphatically argued that since one of the attesting witnesses of Will was produced and examined on behalf of the plaintiffs,, claim of the defendants could not be thrown over board for want of registration of Will and for non-production of both the witnesses. No doubt, law provides that if one of the witnesses of Will has been examined, there is no necessity to examine the other witness also but witness produced in support of the Will, has to be necessarily reliable and believed by the Courts. Emphasis laid by the Counsel for the appellants is that Courts have given completely a novel findings that the appellant No. 2 Bishambhar Singh being a Hindu could not be beneficiary of the property of a person, who is a Muslim.;