Gurmeet Singh Sandhawalia, J. - (1.) THE present revision petition filed under Article 227 of the Constitution of India by the petitioner/defendant is directed against the order of the Addl. District Judge, Bhiwani dated 25.11.2011 whereby the application for leading additional evidence has been rejected.
(2.) THE reasoning given by the Lower Appellate Court is that the evidence was in the knowledge of the appellant and the Sub Registrar not being an attesting witness of the will but being only the registering authority was not necessary witness to prove the will in question. The second ground was that the appellant could not be allowed to fill up the lacuna in the case by way of application filed under Order 41 Rule 27 CPC. The suit for declaration was filed by respondent no.1 -Rameshwar wherein he sought his right in the land in dispute on the strength of the parties being sons of Bhim Singh. Challenge was made to the registered will dated 17.4.2002 allegedly executed by Bhim Singh who died on 23.1.2006 in favour of the present petitioner on the ground of fraud and misrepresentation and that the property was ancestral and plaintiff had a birth right in the same.
(3.) THE suit was contested by the present petitioner on the ground that the plaintiff was living separately and land was not ancestral and received in family settlement and the plaintiff never served his father and mother who had been living separately. The plea taken was that the registered will was duly executed by Bhim Singh in full senses and in the presence of witnesses. The will in question was attested by Attar Singh who appeared as DW -3 and Jai Lal, Numberdar who had died. The deed writer was never produced in evidence and on account of the attesting witness DW -3 not deposing that testator had signed on the will in his presence and after knowing its contents, the trial Court went on to hold that the will in question did not stand proved.;