2026:HHC:25414 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA Nos. 659 and 664 of 2008 Reserved on: 22.5.2026 Date of Decision: 30.6.2026 1. RSA No. 659 of 2008 Hari Chand (deceased) through LRs & ors. ...Appellants Versus Prakash Chand & ors. ...Respondents 2. RSA No. 664 of 2008 Hari Chand (deceased) through LRs & ors. ...Appellants Versus Ashwani Kumar and others ...Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes. For Appellants : Ms Divyani Sharma, Senior Advocate, with Mr Shivam Sharma, Advocate, in both the appeals. For the Respondents : Mr Mohinder Verma, Advocate, in both the appeals. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:25414 Rakesh Kainthla, Judge The present appeals are directed against the judgment and decree dated 1.10.2008, passed by learned District Judge, Hamirpur (learned Appellate Court), vide which the judgment and decree dated 3.4.2006, passed by learned Civil Judge, Junior Division, Barsar, District Hamirpur, H.P., (learned Trial Court) were set aside. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeals are that the plaintiffs filed a civil suit before the learned Trial Court seeking a declaration that the plaintiffs and proforma defendants No.2 and 3 are owners-in-possession of the suit land, mentioned in the headnote of the plaint, and the defendant No.1 has no right, title or interest over it. A consequential relief of a Permanent Prohibitory Injunction for restraining the defendants from interfering with the suit land was also sought. An alternative relief of possession was prayed for in case the plaintiffs are not found to be in possession. It was asserted that Gulab Singh was the owner-in-possession of the suit land. He died on 26.2.1992. He had no male issue. Plaintiffs 3 2026:HHC:25414 and pro forma defendants No. 2 and 3 served him. He executed a Will in their favour on 18.2.1992 in his sound disposing state of mind. Plaintiffs applied for the registration of the Will, and the Will was registered on 11.7.2000 after making a proper enquiry and following the proper procedure. The revenue officers attested the mutation in favour of defendant No.1, ignoring the Will. The defendant no. 1 started interfering with the possession of the plaintiffs and pro forma defendants. Hence, the suit was filed to seek the relief mentioned above. 3. The suit was opposed by the defendant no. 1 by filing a written statement, taking preliminary objections regarding the plaintiffs having suppressed the earlier suit from the Court, the plaintiffs being estopped from filing the suit by their act and conduct and the suit being barred by the limitation. The contents of the plaint were admitted to the extent that Gulab Singh was the owner in possession of the suit land and he had died in the year 1992. It was asserted that plaintiffs No.1 and 2 were children during the lifetime of Gulab Singh, and they could not have served him. The Will dated 9.7.1994, stated to have been executed by Gulab Singh, is a forged document. The mutation was attested by the revenue authorities based on natural 4 2026:HHC:25414 succession on 4.6.1992. Mother of the plaintiffs No.1 and 2 filed a complaint against defendants No.2 and 3 in which she had claimed that she was authorised by the defendant No. 1 to cut grass from the suit land. The plaintiffs’ father purchased one room belonging to Gulab Singh on 27.11.1998 for a consideration of ₹15,000/-. All these circumstances made the execution of the Will suspicious. Hence, it was prayed that the suit be dismissed. 4. Separate written statements were filed by defendants No.2 and 3, taking preliminary objections regarding lack of maintainability, cause of action and locus-standi, and the plaintiffs being estopped from filing the present suit by their act and conduct. The contents of the plaint were denied on the merits. However, it was admitted that the suit land was earlier owned and possessed by Gulab Singh. It was asserted that Gulab Singh had not executed any Will in favour of the plaintiffs and defendants No.2 and 3. This Will was forged by the plaintiffs’ father. The mutation of inheritance was rightly sanctioned in favour of defendant No.1. Hence, it was prayed that the present suit be dismissed. 5 2026:HHC:25414 5. A replication denying the contents of the written statement and affirming those of the plaint was filed. 6. Chinti Devi also filed a civil suit seeking a Permanent Prohibitory Injunction restraining the defendants from raising any construction or changing the nature of the suit land mentioned in the headnote of the plaint till it is partitioned as per the law. It was asserted that plaintiff, Chinti Devi, is the co- owner of the suit land with the defendants, and they have no right to change its nature or raise any construction over it. The defendants started raising construction on part of the suit land. They were requested not to do so, but in vain. Hence, the suit was filed to seek the relief mentioned above. 7. The suit was opposed by defendants No.1 to 3, 5 and 6 by filing a written statement taking preliminary objection regarding lack of maintainability, plaintiff’s being estopped from filing the suit, suit being barred by limitation and defendants being the owners of the estate of Gulab Singh based on a Will. The plaintiff's claim was denied on the merits. It was asserted that the defendants inherited the estate of Gulab Singh by virtue of a Will. The mutation was wrongly sanctioned in 6 2026:HHC:25414 favour of Chinti Devi, and she has no right over the suit land. Hence, it was prayed that the suit be dismissed. 8. A separate written statement was filed by defendants No.4 and 7 admitting the claim of Chinti Devi. 9. A replication denying the contents of the written statement filed by defendants No.1 to 3, 5 and 6 and affirming those of the plaint was filed. 10. The learned Trial Court consolidated both the suits vide order dated 1.3.2002 and framed the consolidated issues on 11.11.2005:- 1. Whether the suit land is jointly owned and possessed by the parties as alleged? OPP. 2. Whether the plaintiff is entitled to the mandatory injunction as claimed? OPP. 3. Whether the plaintiff is entitled to the mandatory injunction as claimed? OPP. 4. Whether the suit is not maintainable in the present form? OPD. 5. Whether Shri Gulabu executed a valid Will dated 18.2.1992 in favour of the defendant, as alleged, if so, its effect? OPD. 6. Whether the plaintiff is estopped from filing the suit by her act and conduct? OPD. 7. Whether the suit is time-barred? OPD. 8. Whether the plaintiff has a cause of action? OPP. 7 2026:HHC:25414 9. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD. 10. Whether the defendants are owners in possession of the suit land as alleged? OPD 1 to 3 and 6. 11. If Issue No.10 is not proved, whether the defendants Nos. 1 to 3 and 6 are entitled for possession of the suit land? OPD 1 to 3 and 6. 12. Relief. 11. The parties were called upon to produce the evidence, and the plaintiffs examined Amar Nath (PW1) and Pritam Singh (PW2). The defendants examined Purshotam Singh (DW1), Sansar Chand (DW2), Dev Raj (DW3), Dina Nath (DW4), Dev Raj (DW5), Hakam Singh (DW6), Mahi Pal (DW7), Roshan Lal (DW8), Prem Singh (DW9), Kuldeep Singh (DW10) and Jugal Kishore (DW11). 12. The learned Trial Court held that the Will propounded by the plaintiffs was shrouded in suspicious circumstances. Gulab Singh died within eight days of the execution of the Will. The Will was left with the scribe Ram Singh, who had not entered it into the register of the Document Writer. The Will was registered after a considerable time from its execution. Plaintiffs father, Prakash Chand, had purchased a house of Gulab Singh from Purshotam Singh for consideration of ₹15,000/-. Mother of the plaintiffs, Nos. 1 and 2, filed a 8 2026:HHC:25414 complaint before the concerned Gram Panchayat against Sansar Chand and Purshotam Singh, asserting that she was authorised by Chinti Devi to cut the grass. These acts were inconsistent with the existence of the Will in the plaintiffs’ favour. The Will was stated to have been executed on Sunday, but 18.2.1992, the date of execution of the Will, was Tuesday. All these circumstances made the execution of the Will suspicious. The plaintiffs had not removed the suspicious circumstances surrounding the execution of the Will. Hence, the learned Trial Court answered Issues No. 1 to 3, 8 in the affirmative, the rest of the issues in the negative and decreed the suit filed by Chinti Devi and dismissed the suit filed by Prakash Chand. 13. Being aggrieved by the judgment and decree passed by the learned Trial Court, two separate appeals were filed before the learned District Judge, Hamirpur, H.P. (learned Appellate Court). Learned Appellate Court held that the execution of the Will was duly proved. The death of the testator within eight days cannot be a suspicious circumstance when there is no evidence that the testator was not in good health. The beneficiary cannot be faulted for the non-entering of the will by the document writer. Testator was free to choose the person 9 2026:HHC:25414 with whom he would leave the Will. The Sale Deed regarding the purchase made by Prakash Chand was not brought on record. The contradiction regarding the day of the execution of the Will was not sufficient to doubt its execution. Hence, the learned Appellate Court allowed the appeal, declared the Will executed by Gulab Singh to be valid, and dismissed the suit filed by Chinti Devi. 14. Being aggrieved by the judgment and decree passed by the learned Appellate Court, the legal heirs of Chinti Devi filed the present appeals, which were admitted on the following substantial question of law on 17.12.2008 and 24.12.2008: - 1. Whether the learned Lower Appellate Court, being the last Court of fact, is right in not discussing the entire oral as well as documentary evidence adduced by the parties as required by it in view of the law laid down by the Hon’ble Apex Court reported in (2000) 5 SCC 652? 2. Whether impugned judgment and decree is the result of a complete misreading, misinterpretation, as well as misappreciation of statements of DW-5 and DW-9 to DW-11? 3. Whether the learned Lower Appellate Court is right in holding the validity of Will (Ex.DW-9/A), dated 18.2.1992, more particularly, when the learned Trial Court had given cogent reasons and as many as seven suspicious circumstances that the Will has not been proved to have been validly executed? 10 2026:HHC:25414 4. Whether the learned Lower Appellate Court is right in not drawing an adverse inference against the respondents- plaintiffs for not appearing as witnesses under Section 114(g) of the Indian Evidence Act? 5. Whether the learned Lower Appellate Court is right in not considering the documents (Ex.D1 to Ex.D5) and more particularly (Ex.D3) the mutation dated 4th June, 1992? 6. Whether the learned Lower Appellate Court is right in not considering the admission made by none else but by one of the respondents, namely, Dina Nath, who appeared as DW-4? 7. Whether the learned Lower Appellate Court is right in not considering the categoric admissions made by DW-2, Sansar Chand and DW-1 Parshotam Singh, who had categorically stated that deceased Gulab Singh alias Gulabu never executed any will and more particularly Will (Ex. DW-9/A), dated 18th February? 15. I have heard Ms Divyani Sharma, learned Senior Counsel, assisted by Mr Shivam Sharma, learned Counsel for the appellants, in both the appeals and Mr Mohinder Verma, learned counsel for the respondents, in both the appeals. 16. Ms Divyani Sharma, learned Senior Counsel for the appellants, in both the appeals submitted that the learned Appellate Court erred in reversing the well-reasoned judgment passed by the learned Trial Court. The learned Trial Court had enumerated various suspicious circumstances which were brushed aside by the learned Appellate Court. Learned First Appellate Court was supposed to discuss the whole evidence, 11 2026:HHC:25414 being the last Court on facts. Defendants did not step into the witness box, and an adverse inference should have been drawn against them. Therefore, she prayed that the present appeal be allowed and the judgment and decree passed by the learned Appellate Court be set aside. She relied upon the following judgments in support of her submissions: - (i) Bharpur Singh and others Vs. Shamsher Singh (2009) 3 SCC 687; (ii) H. Venkatachala Iyengar Vs. B.N. Thimmajamma and others AIR 1959 SC 443; (iii) Shivakumar and others Vs. Sharanabasappa and others (2021) 11 SCC 277; (iv) Ram Piari Vs. Bhagwant and others (1990) 3 SCC 364; (v) Meena Pradhan and others Vs. Kamla Pradhan and another (2023) 9 SCC 734; (vi) Krishnan Vs. Backiam and another (2007) 12 SCC 190; (vii) Gurvachan Kaur & ors. Vs. Salikram (dead) through LRs (2010) 15 SCC 530; (viii) Santosh Hazari Vs. Purushottam Tiwari (deceased) by LRs (2001) 3 SCC 179; (ix) Madhukar & ors. Vs. Sangram & ors. (2001) 4 SCC 756; (x) H.K.N. Swami Vs. Irshad Basith (dead) by LRs (2005) 10 SCC 243; (xi) Vinod Kumar Vs. Gangadhar (2015) 1 SCC 391; 12 2026:HHC:25414 (xii) Manjula & ors. Vs. Shyamsundar & ors. (2022) 3 SCC 90; (xiii) Jagannath Vs. Arulappa (2005) 12 SCC 303; (xiv) B.V. Nagesh Vs. H.V. Sreenivasa Murthy (2010) 13 SCC 530; (xv) Somakka (dead) by LRs Vs. K.P. Basavaraj (dead) through LRs (2022) 8 SCC 261; (xvi) Baljit Singh & ors. Vs. Tarseem Singh & ors. 2024:HHC:1280; (xvii) Naresh Kumar Vs. Amra Devi and others 2023:HHC:11261; (xviii) Som Nath Vs. Ram Pal & ors. 2021:HHC:2493; (xix) Prabhi Devi (dead) through LRs Vs. Jagdish & ors. 2010:HHC:3310; (xx) Qamaruddin Vs. Surjeet Kaur 2005 SCC OnLine Chh 171; and (xxi) Vidyadhar Vs. Manikrao (1999) 3 SCC 573. 17. Mr Mohinder Verma, learned counsel for the respondents, in both the appeals, submitted that the finding regarding the validity of a Will is a pure question of fact which cannot be assailed in a Regular Second Appeal. The Appellate Court had demonstrated the fallacy in the reasoning of the learned Trial Court and was justified in reversing the judgment of the learned Trial Court. Hence, he prayed that the appeals be 13 2026:HHC:25414 dismissed. He relied upon the following judgments in support of his submissions:- (i) Durga Vs. Anil Kumar (2005) 11 SCC 189; (ii) Sito Vs. Amar Nath & ors. AIR 2004 HP 26; (iii) Santosh Kumari and ors. Vs. Vijay Kumari & ors. AIR 2002 HP 103; (iv) Mohinder Lal and ors. Vs. Tule Ram & ors. AIR 2006 HP 103; and (v) Gopal Krishan & ors. Vs. Daulat Ram & ors. 2025 INSC 18 18. I have given a considerable thought to the rival submissions made at the bar and have gone through the records carefully. Substantial Questions of Law No.1: 19. The Hon’ble Supreme Court explained the powers of the first appellate court in Shasidhar v. Ashwini Uma Mathad, (2015) 11 SCC 269: 2015 SCC OnLine SC 26 at page 273, as under: - “10. The powers of the first appellate court, while deciding the first appeal under Section 96, read with Order 41 Rule 31 of the Code, are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra. 11. As far back in 1969, the learned Judge — V.R. Krishna Iyer, J. (as His Lordship then was the Judge of the Kerala High Court) while deciding the first appeal under Section 14 2026:HHC:25414 96 CPC in Kurian Chacko v. Varkey Ouseph [Kurian Chacko v. Varkey Ouseph, 1968 SCC OnLine Ker 101: AIR 1969 Ker 316], reminded the first appellate court of its duty as to how the first appeal under Section 96 should be decided. In his distinctive style of writing and subtle power of expression, the learned Judge held as under: (SCC OnLine Ker paras 1-3) “1. The plaintiff, unsuccessful in two courts, has come up here aggrieved by the dismissal of his suit, which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as well as his possession and claimed both for himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences. 2. An appellate court is the final court of fact, ordinarily, and therefore a litigant is entitled to a full, fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him, and I have no doubt that in the present case, the learned Subordinate Judge has fallen far short of what is expected of him as an appellate court. 3. Although there is a furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation.” 20. It was laid down by the Hon’ble Supreme Court in Somakka v. K.P. Basavaraj, (2022) 8 SCC 261: (2022) 4 SCC (Civ) 437: 2022 SCC OnLine SC 736 that the Appellate Court must come 15 2026:HHC:25414 into close quarters with the reasoning assigned by the learned Trial Court and then assign its reasoning for arriving at different findings. It was observed: “32.1. In Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, para 15] (relevant portion of para 15) is repro- duced below : (SCC pp. 188-89) “15. … The appellate court has jurisdiction to re- verse or affirm the findings of the trial court. First ap- peal is a valuable right of the parties, and unless re- stricted by law, the whole case is therein open for re- hearing both on questions of fact and law. The judg- ment of the appellate court must, therefore, reflect a conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for the decision of the appellate court. … while reversing a finding of fact, the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.” 32.2. In H.K.N. Swami v.Irshad Basith (2005) 10 SCC 243], this Court again reiterated the same principle in para 3 of the judgment: (SCC p. 244) “3. The first appeal has to be decided on facts as well as on law. In the first appeal, parties have the right to be heard both on questions of law as well as on facts, and the first appellate court is required to ad- dress itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case, has not recorded any finding either on facts or on law. Sitting as the first appellate court, it was the duty of the High Court to deal with all the issues and the ev- 16 2026:HHC:25414 idence led by the parties before recording the finding regarding title.” 32.3.In 2015, this Court again, in Vinod Kumar v. Gan- gadhar, (2015) 1 SCC 391 : (2015) 1 SCC (Civ) 521, consider- ing the previous judgment, recorded its view in paras 18 and 19, which are reproduced hereunder : (SCC p. 396) “18. In our considered opinion, the High Court did not deal with any of the submissions urged by the ap- pellant and/or the respondent nor it took note of the grounds taken by the appellant in grounds of appeal nor made any attempt to appreciate the evidence ad- duced by the parties in the light of the settled legal principles and decided case law applicable to the issues arising in the case with a view to find out as to whether the judgment of the trial court can be sustained or not and if so, how, and if not, why. 19. Being the first appellate court, it was the duty of the High Court to have decided the first appeal, keep- ing in view the scope and powers conferred on it under Section 96, read with Order 41 Rule 31CPC mentioned above. It was unfortunately not done, thereby result- ing in prejudice to the appellant, whose valuable right to prosecute in the first appeal on facts and law was adversely affected, which, in turn, deprived him of a hearing in the appeal in accordance with law. It is for this reason that we were unable to uphold the im- pugned judgment [Vinod Kumar v. Gangadhar First Ap- peal No. 173 of 1999, order dated 21-3-2013 (MP)] of the High Court.” 32.4.Very recently, this Court in 2022 (to which one of us, Brother Abdul Nazeer, J. was a member) in Manjula v. Shyamsundar, (2022) 3 SCC 90 : (2022) 2 SCC (Civ) 33], re- iterated the same view in para 8 thereof, which is repro- duced hereunder : (SCC p. 96) “8. Section 96 of the Civil Procedure Code, 1908 (for short “CPC”) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 17 2026:HHC:25414 41 Rule 31CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state: (a) points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is enti- tled. Thus, the appellate court has the jurisdiction to re- verse or affirm the findings of the trial court. It is set- tled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction in- volves a rehearing of the appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect a con- scious application of mind and must record the court's findings, supported by reasons for its decision in re- spect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the re- quirements of Order 41 Rule 31CPC and non-obser- vance of these requirements lead to infirmity in the judgment.” 33. From the above settled legal principles on the duty, scope and powers of the first appellate court, we are of the firm view and fully convinced that the High Court committed a serious error in neither forming the points for determination nor considering the evidence on record, in particular, which had been relied upon by the trial court. The impugned judgment [K.P. Basavaraj v. So- makka, 2006 SCC OnLine Kar 992] of the High Court is thus unsustainable in law and liable to be set aside.” 18 2026:HHC:25414 21. This position was reiterated in Dheeraj Singh v. Greater Noida Industrial Development Authority, 2023 SCC OnLine SC 768, wherein it was observed: “19. In the case of Santosh Hazari Vs. Purushottam Tiwari (Dead) by LRs. (2001) 2 SC 407, this Court held that the court of appeal has a duty to apply its mind to all issues raised before it and to discharge such duty, it must also record its findings against all such issues raised. For the sake of convenience, the relevant paragraph of the said judgment is being extracted herein: "The Appellate Court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties, and unless restricted by law. The whole case is open for rehearing, both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for the decision of the Appellate Court. While reversing a finding of fact, the Appellate Court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the First Appellate Court had discharged the duty expected of it." 20. In the case of Madhukar and Ors. Vs. Sangram and Ors. (2001) 4 SCC 756, this Court, while reiterating the principles laid down in the Santosh Hazari Judgment (Supra), observed that the court of first appeal has a duty to record its findings qua all the issues raised before it, and in cases where the High Court fails to do 19 2026:HHC:25414 the same, the matter must be remanded to the same court again for fresh adjudication..” 22. The abovementioned discussions and judgments, when contextualised to the present case, would show that the High Court was under an obligation to consider the cross objections filed by the Appellants herein. Since such an obligation was not discharged while passing the judg- ment in appeal, we are of the considered opinion that the matter is fit for remand to the High Court for fresh adju- dication on the grounds raised in the cross objections during the appeal by the appellants herein. 22. Similar is the judgment of this court in Sunder Singh v. Roop Singh 2019 SCC OnLine HP 550, wherein it was held: “3. It is a settled principle of law that the right to file the first appeal against the decree under Section 96 of the Code of Civil Procedure is a valuable legal right of the liti- gant. The jurisdiction of the First Appellate Court, while hearing the First appeal, is very wide, like that of the learned trial Court, and it is open to the appellant to at- tack all findings of fact or/and/or law in the first appeal. It is the duty of the first appellate Court to appreciate the entire evidence and may come to a different conclusion from that of the trial Court. While doing so, the judgment of the Appellate Court must reflect its conscious applica- tion of mind and record findings supported by reasons, on all issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate Court. While reversing a finding of fact, the Appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own rea- sons for arriving at a different finding. This would satisfy the court hearing a further appeal that the First Appellate Court had discharged the duty expected of it. 4. The scope, ambit and power of the first Appellate Court while deciding the first appeal have been the subject mat- ter of various judicial pronouncements, and I may refer to 20 2026:HHC:25414 the pronouncement of the Hon'ble Supreme Court in Shasidhar and others vs. Smt. Ashwini Uma Mathad and an- other, (2015) AIR SCW 777, wherein it was held as follows: "11. Having heard learned counsel for the parties and on perusal of the record of the case and exam- ining the issue arising in this appeal, we find force in the submissions of the learned counsel for the appellants. 12. The powers of the first appellate Court, while deciding the first appeal under Section 96, read with Order XLI Rule 31 of the Code, are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra. 13. As far back in 1969, the learned Judge -V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first ap- peal under Section 96 of the CPC in Kurian Chacko vs. Varkey Ouseph, (1969) AIR Kerala 316, reminded the first appellate Court of its duty as to how the first appeal under Section 96 should be decided. In his distinctive style of writing and subtle power of expression, the learned judge held as under: "1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit, which was one for declaration of title and recovery of possession. The defen- dant disputed the plaintiff's title to the prop- erty as well as his possession and claimed both for himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge dis- posed of the whole matter glibly and briefly, in a few sentences. 2. An appellate court is the final Court of fact, ordinarily and therefore a litigant is entitled to a full, fair and independent consideration of the 21 2026:HHC:25414 evidence at the appellate stage. Anything less than this is unjust to him, and I have no doubt that in the present case, the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court. Although there is a furious contest between the counsel for the ap- pellant and the respondent, they appear to agree with me in this observation....." (Emphasis supplied) 14. This Court, in a number of cases, while affirm- ing and then reiterating the aforesaid principle, has laid down the scope and powers of the first appel- late Court under Section 96 of the Code. 15. We consider it apposite to refer to some of the decisions. 16. In Santosh Hazari vs Purushottam Tiwari (De- ceased) by L.Rs., (2001) 3 SCC 179, this Court held (at pages 188- 189) as under: ".........the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties, and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the is- sues arising along with the contentions put forth, and pressed by the parties for the deci- sion of the appellate court......while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court ... and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it............" 22 2026:HHC:25414 17. The above view has been followed by a three- judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors., (2001) 4 SCC 756, wherein it was reiterated that, sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. 18. In H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243, this Court (at p. 244) stated as under: "3. The first appeal has to be decided on facts as well as on law. In the first appeal, parties have the right to be heard both on questions of law as well as on facts, and the first appel- late court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case, has not recorded any finding either on facts or on law. Sitting as the first appellate court, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title." 19. Again, in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while considering the scope of Section 96 of the Code, this Court (at pp. 303 -04) observed as follows: "2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion........." 20. Again, in B.V Nagesh & Anr. vs. H.V.Sreenivasa Murthy, (2010) 13 SCC 530, this Court, taking note of all the earlier judgments of this Court, reiterated the aforementioned principle with these words: "3. How the regular first appeal is to be dis- posed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals 23 2026:HHC:25414 from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is en- titled. 4. The appellate court has jurisdiction to re- verse or affirm the findings of the trial court. The first appeal is a valuable right of the par- ties, and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the is- sues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its find- ings. The first appeal is a valuable right, and the parties have a right to be heard both on questions of law and on facts, and the judg- ment in the first appeal must address itself to all the issues of law and fact and decide them by giving reasons in support of the findings. (Vide Santosh Hazari v.Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Mad- hukar v.Sangram, (2001) 4 SCC 756 at p. 758, para 5.) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to dis- charge the obligation placed on it as a first appellate court. In our view, the judgment 24 2026:HHC:25414 under appeal is cryptic, and none of the rele- vant aspects has even been noticed. The ap- peal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of the considerations that are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judg- ment and decree of the High Court and re- mand the regular first appeal to the High Court for its fresh disposal in accordance with the law." 21. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174. This Court has re- cently taken the same view on similar facts arising in Vinod Kumar vs. Gangadhar, (2014) 12 Scale 171." 5. Similar reiteration of law can be found in the subse- quent judgments of the Hon'ble Supreme Court in Union of India vs. K.V. Lakshman and others, (2016) AIR SC 3139 and in Laliteshwar Prasad Singh & Ors. vs. S.P. Srivastava (deceased) through LRs, (2017) 2 SCC 415. 23. A similar view as taken in Manjula v. Shyamsundar, (2022) 3 SCC 90, wherein it was held: - 8. Section 96 of the Civil Procedure Code, 1908 (for short “CPC”) provides for the filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state: (a) points for determination; (b) the decision thereon; (c) the reasons for the decision; and 25 2026:HHC:25414 (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of the appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court's findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC, and non-observance of these requirements leads to infirmity in the judgment. 24. The judgments in Krishna (supra), Gurbachan Kaur (supra), Santosh Hazari (supra), H.K.N. Swami (supra), Vinod Kumar (supra), Manjula & ors. (supra), Jagannath (supra) and B.V. Nagesh (supra) have laid down similar principles, and it is not necessary to refer to them. 25. In the present case, the learned Appellate Court had not adverted to the suspicious circumstance that the mother of the plaintiffs had complained before the Gram Panchayat against Sansar Chand and Purshotam Singh that she was authorised by Chinti Devi to cut grass from her land. The sale made by Purshotam Singh in favour of Prakash Chand was 26 2026:HHC:25414 brushed aside after holding that no sale deed was produced. Dina Nath (DW4), defendant No.2, admitted in his cross-examination that the house of Gulaba Ram was purchased by Parkash Chand. An admitted fact need not be proved; hence, the learned Appellate Court erred in discarding this fact by holding that the sale deed was not proved, and this fact was not established. Prakash Chand did not step into the witness box, and the admission made by one of the defendants was highly relevant. Thus, the reasoning assigned by the learned Trial Court was not demonstrated to be wrong, and the learned Appellate Court could not have reversed the findings recorded by the learned Trial Court. Therefore, this substantial question of law is answered accordingly. Substantial Questions of Law No. 3, 4, 7 and 9: 26. All these substantial questions of law are connected and are being taken up together for disposal. 27. The law relating to the execution of the Will was explained by the Hon’ble Supreme Court in Meena Pradhan v. Kamla Pradhan, (2023) 9 SCC 734: (2023) 4 SCC (Civ) 449 as under: 27 2026:HHC:25414 “10.1. The court has to consider two aspects: firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him. 10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. 10.3. A will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say: (a) The testator shall sign or affix his mark to the will, or it shall be signed by some other person in his presence and by his direction, and the said signature or affixation shall show that it was intended to give effect to the writing as a will; (b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary; (c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of such signatures; (d) Each of the attesting witnesses shall sign the will in the presence of the testator; however, the presence of all witnesses at the same time is not required. 10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined; 10.5. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator; 28 2026:HHC:25414 10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with; 10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence; 10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last will. In such cases, the initial onus on the propounder becomes heavier; 10.9. The test of judicial conscience has evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires consideration of factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the will; a sound, certain and disposing state of mind and memory of the testator at the time of execution; the testator executed the will while acting on his own free will; 10.10. One who alleges fraud, fabrication, undue influence, etc., has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation. 10.11. Suspicious circumstances must be “real, germane and valid” and not merely “the fantasy of the doubting mind [Shivakumar v. Sharanabasappa [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] ]”. Whether a particular feature would qualify as “suspicious” would depend on the facts and circumstances of each case. Any circumstance raising 29 2026:HHC:25414 suspicion, legitimate in nature, would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit, etc.” 28. This position was reiterated in Gurdial Singh v. Jagir Kaur, 2025 SCC OnLine SC 1466, wherein it was observed: “11. A Will has to be proved like any other document subject to the requirements of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, that is, examination of at least one of the attesting witnesses. However, unlike other documents, when a Will is propounded, its maker is no longer in the land of the living. This casts a solemn duty on the Court to ascertain whether the Will propounded had been duly proved. Onus lies on the propounder not only to prove due execution but to dispel from the mind of the court all suspicious circumstances which cast doubt on the free disposing mind of the testator. Only when the propounder dispels the suspicious circumstances and satisfies the conscience of the court that the testator had duly executed the Will out of his free volition without coercion or undue influence, would the Will be accepted as genuine. In Smt. Jaswant Kaur v. Smt. Amrit Kaur (1977) 1 SCC 369, this Court, referring to H. Venkatachala Iyengar v. B.N. Thimmajamma1959 Supp (1) SCR 426, enumerated the principles relating to proof of Will:— “10. ***** **** **** **** “1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. 30 2026:HHC:25414 2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. 3. Unlike other documents, the will speaks from the death of the testator, and therefore, the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. 4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. 31 2026:HHC:25414 The presence of suspicious circumstances makes the initial onus heavier and, therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. 5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances, that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question, and by reason of suspicious circumstances, the court has to be satisfied fully that the will has been validly executed by the testator. 6. If a caveator alleges fraud, undue influence, coercion, etc., in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.” The Court further held:— “9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, an adversary proceeding becomes in such cases a matter of the court's conscience, and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly 32 2026:HHC:25414 executed by the testator. It is impossible to reach such satisfaction unless the party that sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.” 12. Similarly, in Ram Piari v. Bhagwant (1993) 3 SCC 364, this Court held that when suspicious circumstances exist, Courts should not be swayed by the due execution of the Will alone: “3. ……………….Unfortunately, none of the courts paid any attention to these, probably because they were swayed with due execution even when this Court in Venkatachaliah case [AIR 1959 SC 443: 1959 Supp (1) SCR 426] had held that, proof of signature raises a presumption about knowledge, but the existence of suspicious circumstances rebuts it…………….” 13. There is no cavil when suspicious circumstances exist and have not been repelled to the satisfaction of the Court, the Court would not be justified in holding that the Will is genuine since the signatures have been duly proved and the Will is registered. (AIR 1962 SC 567). 29. A similar view was taken in Bharpur Singh and others (supra), H. Venkatachala Iyengar (supra), Shivakumar (supra) and Ram Piari (supra), and it is not necessary to discuss these judgments. 30. It is undisputed that the mutation of inheritance was sanctioned in favour of Chinti Devi based on natural succession. Purshotam Singh, proforma defendant No.3, was present at the time of attestation of the Will. He acknowledged the correctness of the inheritance, and the mutation was attested. Purshotam 33 2026:HHC:25414 Singh never propounded the Will at the time of the attestation of the mutation. 31. Dina Nath admitted that the house of Gulab Singh was purchased by Parkash, plaintiff’s father. Had the Will been executed in favour of the plaintiffs and proforma defendants, he had no occasion to purchase the house. This would cast doubt regarding the validity of the Will. 32. Hukam Singh (DW6) admitted in his cross- examination that Prakasho Devi, the wife of Prakash Chand, had filed a complaint in the Gram Panchayat that Purshotam had cut the grass. The copy of the order passed by the Gram Panchayat (Ex.D1) reads that Prakasho Devi was unable to establish that the land was given to her for cutting the grass. Hence, the complaint was dismissed. Had Gulab Singh executed a Will in favour of the sons of Prakasho Devi, she had no reason to assert before the Gram Panchayat that land was given to her by Chinti Devi for cutting the grass. 33. Therefore, the Will was not set up at the earliest opportunity when it could have been set up. It was not set up during the mutation proceedings; the parents of the 34 2026:HHC:25414 beneficiaries had acted contrary to the recitals in the Will and had acknowledged the title of Chinti Devi by purchasing the house and asserting that she had given the grass to Prakasho Devi. It was laid down by the Hon’ble Supreme Court in Kalyan Singh v. Chhoti, (1990) 1 SCC 266: 1989 SCC OnLine SC 340, that where the Will was not set up at the earliest opportunity, it is a suspicious circumstance. It was observed at page 273: “19. There is yet another circumstance that tells against the genuineness of the will. The will purports to have been executed in 1916, and Gangaram instituted the suit in 1959. The will had not seen the light of day till the in- stitution of the suit. It is not as if Gangaram or his brother or father had no opportunity to produce the will to assert rights over the property in question. The plaintiff has stated in his evidence that his father Narayan handed over the will to him. Narayan was, therefore, aware of the execution of the will. Yet he did not disclose it to the court in the suit against him. His statement was recorded on July 8, 1925, wherein he had admitted that he was only the pujari of the temple, and the wife of Baldeo sold the property. He did not say that his son Gangaram became the owner of the property under the will executed by Gau- rilal. In the second suit, Bhonrilal set up an independent title to the property by adverse possession. That claim was totally destructive of Gangaram's title. It cannot be said that Gangaram was ignorant of that litigation till he filed the suit. His evidence does not lead to that inference. In fact, the plaintiff's averments and his statements in court lead to the contrary. Gangaram, however, did not attempt to produce the will in that suit. In the long period of 43 years, no one made any attempt to rely upon the will against the claim of the Darjee community when the 35 2026:HHC:25414 community representatives had successfully brought two suits. This would not have been the natural conduct of a person if the will had been really in existence.” 34. Similarly, it was held in Chandan v. Longa Bai, 1997 SCC OnLine MP 159: (1998) 2 MP LJ 113, that where the Will was not mentioned in an application claiming inheritance, it was a suspicious circumstance. It was observed at page 135: “39…There is a document on record, Ex. P/16C, which purports to be an application on behalf of Harbo Bai, addressed Adhyakash Nagarpalika, Bhind. In this document, she had prayed that her name be entered in place of her father-in-law, Ayodhya Prasad, who had died, as she was the widow and sole heir in possession. There is nothing in this document to show that she ever claimed to be a legatee of Ayodhya Prasad under the Will. Had it been a fact that there was any Will in existence when that application was given, she must have mentioned that Ayodhya Prasad had executed the Will in her favour. Again, there is another document on record dated 27-12-1957, which is a copy of an application for a succession certificate moved before the Court of the District Judge, Bhind. In this document, there is also no mention of the existence of any Will. However, it appears that Ex. D/1 is a registered document. It can be inferred that it was in existence, but as it was not a genuine document, but a manufactured one, it was not mentioned in the application. Harbo Bai should not have applied for a succession certificate, but she must have come forward with an application for claiming a right under the Will if a bona fide Will was in existence. But it was not done. It again shows a very important circumstance against the genuineness of the alleged Will.” 36 2026:HHC:25414 35. Therefore, the learned Trial Court had rightly held that these circumstances make the execution of the Will suspicious. 36. Prem Singh (DW9) stated in his cross-examination that Ram Singh was working as a document writer. He had not brought the register or the stamp pad because it was Sunday and a holiday. Learned Trial Court had pointed out that 18.2.1992 was not a Sunday but a Tuesday. It was submitted by Mr Mohinder Verma, learned counsel for the respondents, that 18th February might be a gazetted holiday, but the calendar of the year 1992 does not show any holiday on 18th February. Therefore, this submission cannot be accepted. The learned Appellate Court held that it was merely a discrepancy regarding the day, which is not sufficient to doubt the execution of the Will; however, this is not acceptable because the day of execution of the Will, being a Sunday, was an explanation for not bringing the register or the stamp pad by the document writer. A person can be mistaken regarding the day or the date, but he cannot be mistaken regarding the explanation for not entering the contents of the Will into the register or not putting the stamp by the document writer. Therefore, the learned Trial Court was justified in 37 2026:HHC:25414 doubting the Will due to the false explanation, and the learned Appellate Court was in error in brushing aside this circumstance lightly. 37. It was submitted that the validity of the Will is a pure question of fact and cannot be disturbed in a Regular Second Appeal. Reliance was placed upon the judgments of this Court in Santosh Kumari (supra), Sito (supra), and Mohinder Lal (supra) in support of this submission. The judgments cited by learned counsel do not help him. In Santosh Kumari (supra), it was noticed in para. 20, the Court can interfere with the concurrent findings when the reasoning is flimsy. In Sito (supra), it was held that when two inferences are possible, the High Court will not substitute its opinion for the opinion of the first court unless it is found that the conclusions drawn by the learned Appellate Court were erroneous. In the present case, the reasons assigned by the learned Appellate Court for holding the Will to be valid ignored the glaring suspicious circumstances, and this Court has jurisdiction to interfere. Mohinder Lal (supra) deals with the limitation for filing the suit claiming title of the property based on the Will, and 2009 HLJ 649 deals with the Negotiable Instruments Act, 1881, which are not relevant. 38 2026:HHC:25414 38. Therefore, the learned Trial Court had rightly held that the Will was shrouded in suspicious circumstances, and the learned Appellate Court erred in holding that the circumstances pointed out by the learned Trial Court were not suspicious. Hence, these substantial questions of law are answered accordingly. Substantial Question of Law N.6: 39. The plaintiffs did not step into the witness box. No reason was assigned for the non-appearance. It was held by this Court in Som Nath (supra) that where the propounder of the Will does not step into the witness box, an adverse inference has to be drawn. It was observed as under: - “20. If this was not enough, the defendant in the instant case has not even cared to step into the witness box, hence dverse inference is required to be drawn against him under Section 114(g) of the Indian Evidence Act as per dictum of the Hon'ble Supreme Court in Vidhyadhar Vs Mankikrao and another AIR 1999 SC 1441 and Ishwar Bhai C. Patel v. Harihar Behara, AIR 1999 SC 1341. The mere fact that the will is registered, in the peculiar facts and circumstances of the instant case, would lend no credence to the will, more particularly, when it is shrouded by suspicious circumstances. The substantial question of law is answered accordingly.” 40. Similarly, adverse inference was drawn in Prabhi Devi (supra), Qamaruddin (supra), Vidyadhar (supra), Baljeet Singh 39 2026:HHC:25414 (supra), and Naresh Kumar. Learned Appellate Court did not advert to this aspect. Hence, this substantial question of law is answered accordingly. Substantial Question of Law No.8: 41. Sansar Chand (DW2) and Purshotam Singh (DW1) had specifically denied in their cross-examination that Gulaba had executed a Will in favour of the plaintiffs and the proforma defendants Nos. 2 and 3. Defendants Nos 2 and 3, who are stated to be the beneficiaries of the Will, filed a written statement denying that any Will was executed in their favour or the plaintiffs’ favour. They asserted that the Will was forged by the father of the plaintiffs. These averments were sufficient to cast a doubt on the validity of the Will, and the learned Appellate Court erred in ignoring them. Hence, this substantial question of law is answered accordingly. Final order: 42. In view of the above, the judgment and decree passed by the learned Appellate Court cannot be sustained. Hence, the present appeals are allowed, and judgments and decrees passed by the learned Appellate Court are ordered to be set aside, and 40 2026:HHC:25414 those passed by the learned Trial Court are ordered to be restored. 43. Pending application(s), if any, also stand(s) disposed of. 44. Records of the learned Courts below be sent down forthwith. (Rakesh Kainthla) Judge 30th June, 2026 (Chander)