JAIN, J. - (1.) BRIEF facts giving rise to this second appeal are that plaintiff-appellant Birbal filed a suit for declaration and permanent injunction in the lower Court against the defendants to pass a decree in his favour declaring him to be the successor of late Shri Nathu Ram son of Geeda Ram and that the defendants No. 1 to 4 are not the heirs of deceased Nathu Ram and further that deceased Nathu Ram did not die issueless. It was further prayed in the plaint that the land which has been attached by Tehsildar, Tehsil Neem-ka-Thana, treating the land of late Shri Nathu Ram as escheat property, be released and the same be handed over to the plaintiff. A prayer of permanent injunction was also made that the defendants No. 1 to 5 be restrained from interfering with the possession of the plaintiff and further not to transfer the land in dispute. The plaintiff pleaded in the suit that late Shri nathu ram son of Geeda Ram was an old person and was issueless but he was very affectionate to the plaintiff, therefore, he used to live with the plaintiff. Shri Nathu Ram in his lifetime executed a `will' dated 11. 7. 1981 in favour of the plaintiff. Shri Nathu Ram died on 9. 5. 1982 and, by virtue of execution of the `will' in his favour, the plaintiff became the owner of the property left by late Shri Nathu Ram. However, the Tehsildar without any authority, attached the property left by Shri Nathu Ram treating it to be escheat property as Nathu Ram died issueless.
(2.) THE defendants No. 1 to 4 filed joint written statement in the lower Court wherein they denied the contends of the plaintiff. It was pleaded that Nathu Ram died issueless. THE defendant No. 1 Mst. Gyarsi Devi was cousin sister of late Nathu Ram, therefore, she is successor of late Nathu Ram. THE execution of `will' dated 11. 7. 1981 was denied and it was pleaded that the same is forged one, therefore, it was prayed that the suit of the plaintiff be dismissed. Defendant No. 5 the State of Rajasthan also filed separate written statement wherein the contents of the plaint were denied and it was pleaded that the `will' appears to be forged one. However, it was also pleaded that the person, who is declared successor by the Court, will be entitled to get the property left by late Nathu Ram. The learned lower Court framed eight issues. The issue No. 1 was as to whether late Nathu Ram executed a `will' dated 11. 7. 1981 in favour of plaintiff Birbal. Both the parties led oral as well as documentary evidence in support of their respective contentions. The learned lower court vide its judgment and decree dated 16. 12. 1987 decreed the suit of the plaintiff and it was declared that Nathu Ram son of Geeda Ram had executed a `will' dated 11. 7. 1981 (Exhibit-1) in favour of the plaintiff and on that basis the plaintiff is entitled to be his successor and Tehsildar was directed to release the attached property of late Nathu Ram and to handover the possession of the same to the plaintiff. The decree of permanent injunction was also passed in favour of the plaintiff thereby restraining the defendants from interfering with the possession of the plaintiff. The defendants No. 1 to 4 filed Civil First Appeal, which was allowed by the lower appellate Court vide judgment and decree dated 30. 7. 1988. The judgment and decree passed by the lower court was set aside. The lower appellate Court further held that the defendant No. 1 Mst. Gyarsi was also not declared as successor of late Nathu Ram as she did not file any counter-claim in respect of her claim to declare her as legal heir of late Nathu Ram, after payment of court fee and in these circumstances no decree can be passed in her favour also and consequently he directed that the entire property left by late Nathu Ram be treated as escheat property and the Tehsildar was directed to take appropriate action in respect of the said property in accordance with the provisions of the Rajasthan Escheat Property Regulation Act. The plaintiff being aggrieved with the aforesaid judgment and decree passed by the lower appellate Court, preferred this second appeal. This court, while admitting the present second appeal on 12. 8. 1988, formulated following substantial questions of law:- " 1. Whether the judgment of reversal of finding of fact arrived at by the trial Court without giving reasons to disbelieve the reasonings of the trial Court is perverse? 2. Whether apart from the evidence of scribe and the attesting witnesses of the Will it is incumbent for the propounder of the will to examine the expert?"
(3.) IT is also relevant to mention that the defendants No. 1 to 4 also filed their cross-objections under Order 41 Rule 22 of the CPC in respect of observations given in Para 24 of the judgment of the lower appellate court to the effect that Mst. Gyarsi did not file any counter-claim to declare that she is entitled to recover the property of late Nathu Ram, therefore, the property left by Nathu Ram is declared as escheat property. The said cross-objections have not been admitted so far by this Court and the same are lying in the file of this second appeal, therefore, they were also heard along with the second appeal itself. Learned counsel for the appellant contended that the reasoning given by the lower appellate court in reversing the finding of the lower court are absolutely illegal and unjustified. He contended that the reasonings given by the lower appellate court for dismissing the suit of the plaintiff are contrary to the well settled principles of law by this Court as well as by Hon'ble the Apex Court. He further contended that the lower Court recorded a finding on issue No. 1 in favour of the plaintiff and came to the conclusion that the `will' (Exhibit-1) was executed by late Nathu Ram in favour of plaintiff Birbal and the same is proved not only by scribe but by attesting witnesses also. He further contended that the lower appellate Court has not disbelieved the testimony of scribe as well as the attesting witnesses but rather recorded a finding that, on the basis of the evidence, the execution of `will' (Exhibit-1) is proved but he at his own, came to a conclusion that there are suspicious circumstances which make the execution of the `will' doubtful, and, on the basis of suspicious circumstances narrated by him in the judgment, disbelieved execution of the `will' (Exhibit-1) and consequently set aside the judgment and decree passed by the lower court, which is absolutely illegal and without jurisdiction and, the same is liable to be set aside by this Court. Learned counsel for the respondents supported the judgment of the lower appellate court and contended that the reasons given by the lower appellate Court for treating the `will' (Exhibit-1) as suspicious are correct and the lower appellate court was right in setting aside the judgment and decree passed by the lower Court and in dismissing the suit of the plaintiff. The learned counsel for the respondents has not advanced any specific arguments on the cross-objection. ;