- (1.) Present regular second appeal has been filed against the judgments and decrees passed by the learned courts below vide which suit filed by the plaintiff-respondents seeking declaration that the plaintiff and defendants No.3 and 4 are owners in joint possession of land measuring 8 kanals 6 marlas situated in the revenue estate of village Verka, Tehsil and District Amritsar being the legal heirs of deceased Waryam Singh husband of the plaintiff and father of defendants No.3 and 4 with a consequential relief restraining the defendants from alienating the suit property or interfering in the possession of the plaintiff and defendants No.3 and 4.
(2.) Learned courts below on appreciation of evidence recorded a concurrent finding of fact that the plaintiff was entitled to declaration and injunction. The plea taken by defendants No.1 and 2 was that they are son and daughter of predeceased daughter of Waryam Singh in whose favour a registered Will was executed. However, learned courts below did not accept the said Will as the original was not got proved and only certified copy was placed on record without seeking any permission to lead secondary evidence.
(3.) In the appeal before lower appellate court an application was made under Order 41 Rule 27 of the Code of Civil Procedure for leading additional evidence to prove the original Will by summoning it from the revenue courts where it was said to have been filed. However, said application was rejected by holding that additional evidence could not be allowed to fill up lacunae especially when the appellant-defendants had a right to lead evidence and as per the stand taken by the appellants said Will was even summoned in court at the time of leading evidence in affirmative.;