Paragraph numbers below are the court’s original numbering, recovered from the source text.
20. Shakti Bhog Food Industries Ltd. (supra) also noticed the earlier three-Judge bench decision in Union of India v. West Coast Paper Mills Ltd.17. There, the distinction between Article 58 and Article 113 of the Limitation Act was noticed and delineated as under: “21. A distinction furthermore, which is required to be noticed is that whereas in terms of Article 58 the period of three years is to be counted from the date when ‘the right to sue first accrues’, in terms of Article 113 thereof, the period of limitation would be counted from the date ‘when the right to sue accrues’. The distinction between Article 58 and Article 113 is, thus, apparent inasmuch as the right to sue may accrue to a suitor in a given case at different points of time and, thus, whereas in terms of Article 58 the period of limitation would be reckoned from the date on which the cause of action arose first, in the latter the period of limitation would be differently computed depending upon the last day when the cause of action therefor arose.”
21. One other three-Judge bench decision of this Court is Madhukar Vishwanath v. Madhao18, wherein the question arising for decision was whether a suit filed by a minor, 7 (seven) years after having attained majority, seeking a declaration that the alienation made by his guardian was barred by limitation. While the appellant argued that possession being sought, Article 65 of the 1963 Act would govern the question of limitation, the respondents argued that the suit being one seeking declaratory relief, would be governed by Article 60 of the 1963 Act. Upholding the latter argument, this Court held that possession only being a consequential relief, Article 65 would not apply.
22. This principle was further relied upon and affirmed by this Court in L.C. Hanumanthappa v. H.B. Shivakumar19.
23. Further, in Rajpal Singh v. Saroj20, this Court held that where a composite suit had been filed for cancellation of the sale deed and (2004) 2 SCC 247 (1999) 9 SCC 446 (2016) 1 SCC 332 (2022) 15 SCC 260 [2025] 4 S.C.R. Rajeev Gupta & Ors. v. Prashant Garg & Ors. of possession, the limitation period would have to be adjudged from the primary relief of cancellation which is 3 (three) years, and not the ancillary relief of possession which is 12 (twelve) years. In holding so, this Court held that: “14. The submission on behalf of the original plaintiff (now represented through her heirs) that the prayer in the suit was also for recovery of the possession and therefore the said suit was filed within the period of twelve years and therefore the suit has been filed within the period of limitation, cannot be accepted. Relief for possession is a consequential prayer and the substantive prayer was of cancellation of the sale deed dated 19-4-1996 and therefore, the limitation period is required to be considered with respect to the substantive relief claimed and not the consequential relief. When a composite suit is filed for cancellation of the sale deed as well as for recovery of the possession, the limitation period is required to be considered with respect to the substantive relief of cancellation of the sale deed, which would be three years from the date of the knowledge of the sale deed sought to be cancelled. Therefore, the suit, which was filed by the original plaintiff for cancellation of the sale deed, can be said to be substantive therefore the same was clearly barred by limitation. Hence, the learned trial court ought to have dismissed the suit on the ground that the suit was barred by limitation. …” (emphasis supplied)
24. These precedents would certainly have a bearing on the question of limitation, which we are tasked to decide.
25. Heavy reliance has been placed by the plaintiffs on a 3-Judge Bench decision of this Court in Sopanrao v. Syed Mehmood21 wherein, while adjudicating a suit for possession and declaration of title, this Court held that: (2019) 7 SCC 76 2384 “9.***The appellants contend that the limitation for the suit is three years as the suit is one for declaration. We are of the view that this contention has to be rejected. We have culled out the main prayers made in the suit hereinabove which clearly indicate that it is a suit not only for declaration but the plaintiffs also prayed for possession of the suit land. The limitation for filing a suit for possession on the basis of title is 12 years and, therefore, the suit is within limitation. Merely because one of the reliefs sought is of declaration that will not mean that the outer limitation of 12 years is lost. Reliance placed by the learned counsel for the appellants on the judgment of this Court in L.C. Hanumanthappa v. H.B. Shivakumar [(2016) 1 SCC 332 : (2016) 1 SCC (Civ) 310] is wholly misplaced. That judgment has no applicability since that case was admittedly only a suit for declaration and not a suit for both declaration and possession. In a suit filed for possession based on title the plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land. However, the main relief is of possession and, therefore, the suit will be governed by Article 65 of the Limitation Act, 1963.***” (emphasis supplied)
26. Mr. Kumar has been vociferous in his argument that the aforesaid precedent binds us.
27. However, what we find from the decision in Sopanrao (supra) is that the larger bench did not have the benefit of taking into consideration number of precedents in the field some of which are noticed above.
28. Bare reading of the aforesaid precedents reveals a cleavage of opinion. While all the precedents seem to be ad idem on the point of interpretation of Articles 58, 59 and 113 under First Division – Suits forming part of the Schedule to the Limitation Act, the decision in Sopanrao (supra) does seem to strike a discordant note on such point.
29. Taking into consideration all the precedents, we may summarise our views on the question under consideration. [2025] 4 S.C.R. Rajeev Gupta & Ors. v. Prashant Garg & Ors.
30. Insertion by the Parliament of the word “first” under the column ‘Time from which period begins to run’ in Article 58 is not without a purpose. Such word, which was not there in the Limitation Act, 1908, has been designedly used in Article 58 to signify that a suit to obtain declaration (other than those referred to in Articles 56 and 57) has to be instituted within three years of ‘when the right to sue first accrues’. In simpler terms, if cause of action to sue means accrual of the right for an actionable claim, it is the moment from which such right first accrues that the clock of limitation would start ticking. Thus, even though cause of action for instituting a suit might arise on varied occasions and/or at different times, what is material and assumes relevance for computing the period of limitation under Article 58 is the date when the right to sue first accrues to the aggrieved suitor. Though dominus litus, a suitor cannot pick and choose a time for approaching court. The period of limitation in terms of Article 58 being 3 (three) years, the prescribed period has to be counted from that date of the right to sue first accruing and the suit, if not instituted within 3 (three) years therefrom, would become barred by time.
31. Similarly, under the column ‘Time from which period begins to run’ in Article 59 providing for a three-year limitation period for cancellation of an instrument, the ordainment is that the period will run ‘when the facts entitling the plaintiff to have the instrument … cancelled or set aside … first become known to him’. Any suit seeking cancellation of a particular instrument as void or voidable would be governed by Article 59 and, therefore, has to be instituted within 3 (three) years from date the suitor could be said to have first derived knowledge of the fact of such an instrument (which, according to him, is void or voidable) coming into existence. The word “first” in Article 59 would ordinarily have the same connotation as in Article 58.
32. In the present case, the appellants had been put in possession of the suit property in furtherance of the sale deeds executed by and between Ramesh Chand and the former after the same were registered. Hence, a civil suit seeking declaration of status or right simplicitor would not have sufficed for the plaintiffs since admittedly, they were required to seek further relief. A composite suit seeking cancellation, recovery of possession and injunction is what was required to be instituted, as distinguished from a suit seeking only recovery of possession. There is an admission of the plaintiffs on 2386 record that the appellants had moved into the suit property soon after execution of the sale deeds. Thus, the facts and circumstances were such that in addition to seeking cancellation of the sale deeds, since registered, the plaintiffs had to and did seek recovery of possession. Cancellation, we are inclined to hold, was the primary relief in the circumstances with recovery of possession being the ancillary relief.
33. Turning to the facts, the sale deeds executed by and between Ramesh Chand and the appellants were not sham and inoperative such that the plaintiffs could, at their option, not seek cancellation thereof. Execution of the sale deeds was followed by registration as required by law. Whether or not Ramesh Chand had any subsisting right to transfer the suit property or whether or not the plaintiffs did trace their title through any valid deed/document could be examined by the trial court only if the civil suit had been instituted by the plaintiffs within the period of limitation, as prescribed. In a case of the present nature, it was not sufficient for the plaintiffs to claim a decree for recovery of possession only. They had to otherwise establish their right to the suit property.
34. The civil suit was instituted with a prayer for cancellation of the registered sale deeds, which the plaintiffs conveniently sought to give up to project that the suit was only for recovery of possession and, thus, duly instituted in terms of Article 65, i.e., within 12 (twelve) years ‘when the possession of the defendant becomes adverse to the plaintiff’. After the civil suit failed on the ground of limitation, the relief of declaration was belatedly sought to be inserted in the plaint in course of the first appeal. Although the plaintiffs sought to contend that the prayer for cancellation as well as the proposed insertion of the prayer for a declaration was by way of an abundant caution, we have no hesitation in rejecting such a contention as an after-thought.
35. It is not in dispute that the plaintiffs did have knowledge – constructive as well as actual – during the pendency of the second suit or soon thereafter of transfer of the suit property in favour of the appellants effected by Ramesh Chand by way of execution of the sale deeds which were subsequently registered as required by Section 54 of the ToP Act. Once the appellants started residing in the suit property, what crystallised was the invasion of the plaintiffs’ rights. Their right to the suit property, if any, was put to clear jeopardy. With the [2025] 4 S.C.R. Rajeev Gupta & Ors. v. Prashant Garg & Ors. execution of the sale deeds, subsequently registered, this was the moment when the right to sue first accrued to the plaintiffs. In fact, according to the plaintiffs, Ramesh Chand was proposing to dispose of the suit property in favour of third parties and such apprehension of an intended transfer was precisely the cause of action that was pleaded for institution of the second suit. In any event, whatever be the relevant date, i.e., execution of the sale deeds by which Ramesh Chand conveyed the suit property to the appellants or the date of taking actual possession of the suit property by the appellants from Ramesh Chand a few days after execution of such deeds, it is from such date of knowledge in June, 1992 that the said transfer effectively did invade or jeopardize the plaintiffs’ interest in respect of the suit property. Contention of Mr. Gulati, therefore, has sufficient force that the suit had to be instituted within 3 (three) years, since the title in respect of the suit property had passed on to the appellants. He is also right in submitting that the conduct of the plaintiffs does throw light on how they juggled to overcome the bar of limitation by seeking a decree for cancellation of the sale deeds, which they sought to abandon midway by applying for amendment; thereafter, again they made an attempt for insertion of the prayer for declaration, also by way of an amendment at the appellate stage, which did not ultimately fructify.
36. The civil suit of the plaintiffs having been instituted in 2003, it was hopelessly barred by limitation and Section 3 of the Limitation Act essentially entails its dismissal. The trial court, therefore, was right in dismissing the suit, inter alia, on the ground of limitation.
37. The civil suit of the plaintiffs being barred by limitation, normally, we would not be required to delve into the other questions urged by the parties.
38. However, in view of the fact that we have expressed a view in accord with other precedents in the field but not necessarily a view which is wholly in consonance with the larger bench decision in Sopanrao (supra) and Mr. Kumar having urged that we are bound thereby, freeing ourselves of the finding that the civil suit was time-barred, we wish to deal with the other questions arising for decision as well.
39. However, before parting with our discussion on this question, we also wish to observe that there is one observation in the same relied on paragraph of the decision in Sopanrao (supra) which could cost 2388 the plaintiffs dearly. We propose to refer to the same at a later part of this judgment, while proceeding to decide the other questions arising for decision. II. Whether the sale deeds were void documents
40. The plaintiffs contended that Ramesh Chand had no right in the property, and being devoid of any ownership rights, was in no position to transfer title of the same to the appellants. Reliance has been placed on the legal maxim nemo dat quod non habet, i.e., no one can transfer a better title than what he himself possesses. Furthermore, the sale deeds having been executed when an ad-interim injunction order was in operation, the bar in Section 52 of the ToP Act would render the sale deeds void ab initio. On the other hand, the appellants have relied on Section 41 of the ToP Act to advance the submission that Ramesh Chand having been portrayed to the world at large as owner, the plaintiffs could not emerge from out of the woodwork to claim a secret title.
41. The High Court’s finding that the sale deeds would be rendered void solely on account of the operation of an injunction order has necessarily to be set aside. It is settled law that Section 52 of the ToP Act does not ipso facto render a sale transaction as inoperative, it merely subjects it to the outcome of the pending proceedings. This Court in G.T. Girish v. Y. Subba Raju22 held that: “137. A transfer which is made lis pendens it is settled law, is not a void document. It does create rights as between the parties to the sale. The right of the party to the suit who conveys his right by a sale is extinguished. All that Section 52 of the Transfer Property Act provides is that the transfer which is made during the pendency of the proceeding is subjected to the final result of the litigation.”
42. Furthermore, the High Court failed to scrutinise the nature of the second suit in which the alleged ad-interim injunction order was passed. A perusal of the same reveals that the second suit was filed by Dr. Karam Chand on 15th June, 1992 and was compromised 4 (four) months later on 12th October, 1992 with one of the terms of (2022) 12 SCC 321 [2025] 4 S.C.R. Rajeev Gupta & Ors. v. Prashant Garg & Ors. compromise being that the revenue records would be mutated in the name of Dr. Karam Chand, which mutation was never carried out. Suspicion clouds the second suit, more so, when it is noted that though the first sale deed was executed by Ramesh Chand on the very next day the order of injunction was passed, i.e., on 16th June, 1992 and the second deed executed on 29th June, 1992, whereafter the appellants were put in possession, neither was the ad-interim injunction order ever produced before the trial court in the present proceedings (having seen the light of day in the first appellate court for the first time) nor was the issue brought before the trial court for its examination and decision. Dr. Karam Chand and Ramesh Chand conveniently had the civil suit disposed of on the basis of compromise, when Ramesh Chand did not have any subsisting right in the suit property having sold it to the appellants. The effect of the doctrine of lis pendens, which Section 52 of the ToP Act embodies, is not to annul all voluntary transfers effected by a party to the suit but only to render it subservient to the rights of the parties thereto under the decree or order that the court may make in the suit. The transfer, subject to the result of the suit, could remain valid. In view of Dr. Karam Chand and Ramesh Chand conveniently entering into a compromise, collusion between the plaintiffs and Ramesh Chand is writ large. There being no proof that the appellants had knowledge of this injunction order, the transaction could not have been declared void ab initio. In view of the facts and circumstances discussed above, we thus find this to be a case which falls within the exceptions laid down under Section 52 of the ToP Act, i.e., non-applicability of the provision to collusive suits.
43. We now proceed to advert to the second limb of the argument, i.e., the competence of Ramesh Chand to execute the sale deeds. In arguendo, even if it is accepted that Dr. Babu Ram Garg by the WILL did not bequeath any interest in the suit property to Ramesh Chand, it is an admitted fact that he was allowed to reside in the property, and that he was allowed to continue with collection of rent from shops therein. Most importantly, in 1956, the name of Ramesh Chand was mutated in the revenue records in respect of the suit property and this record remained unchanged and unchallenged till 1997 when the appellants applied for and obtained mutation of revenue records in their favour. In view thereof, it would have been well-nigh impossible for any vendee to conclude that someone other 2390 than Ramesh Chand was the owner of the suit property. Thus, the appellants would have to be held to be bona fide purchaser for value and, thus, entitled to the benefit of Section 41 of the ToP Act.
44. Mr. Kumar has joined issue by citing absence of requisite pleadings for attracting Section 41 of the ToP Act. Even though Section 41 might not have been expressly referred to in their written statement by the appellants, what was pleaded in paragraph 35 thereof is considered sufficient for the present purpose. The appellants have taken the same plea in ground (cc) of the appeal. Contention of Mr. Kumar, to the contrary, is thus not acceptable.
45. Disagreeing with the High Court, we answer this question in favour of the appellants and against the plaintiffs. III. Whether the WILL stood admitted in the previous suits and was no longer required to be proved
46. An intriguing argument was presented by Mr. Kumar for the plaintiffs, asserting that the execution of the WILL was not contested by the predecessor-in-interest of the appellants in the initial two suits, and therefore, the WILL is deemed to be admitted and they are bound by such admission of their predecessor; and, also, because res judicata applies. Reliance was placed upon Section 58 of the Evidence Act in support of the argument that facts admitted, which in the present case is the execution of the WILL, do not require further proof. As a result, there was no obligation to prove the WILL in accordance with Section 68 of the Evidence Act, which mandates that at least one attesting witness be called for proving the WILL.
47. At the first blush, this argument may appear to be rational but we find it difficult to agree with it.
48. The principle that a will must be proven in accordance with Section 68 of the Evidence Act, is firmly established in law. In Ramesh Verma v. Lajesh Saxena23, this Court held that requirement of proof of a will in accordance with Section 68 is not done away with, even if the will is not disputed by the opposite party. For ease of understanding, we quote the relevant passage hereunder: (2017) 1 SCC 257 [2025] 4 S.C.R. Rajeev Gupta & Ors. v. Prashant Garg & Ors. “13. A will like any other document is to be proved in terms of the provisions of Section 68 of the Evidence Act and the Succession Act, 1925. The propounder of the will is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.” (emphasis supplied)
49. Furthermore, it is worth mentioning that the plaint in the first suit lacked essential details regarding the WILL; the original WILL was never filed before the trial court; the WILL only came to light in 2003; the plaint in the subject suit did not clarify the WILL’s current status —whether it was lost or not. In light of such vague descriptions, it is difficult to accept that there was deemed admission due to non-denial in the first place. Nonetheless, for the sake of argument, even if these flaws were absent and yet the defendant did not deny the execution of WILL, the obligation to prove a WILL as specified in Section 68 would remain unaltered (as discussed above).
50. Next, it was submitted by Mr. Gulati, and rightly so, that the benefit of Section 90 of the Evidence Act of presumption as to documents thirty years old could not have been given to the plaintiffs. As applicable in the State of Uttar Pradesh, Section 90A with the State amendment is reproduced below: “90-A. (1) Where any registered document or a duly certified copy thereof or any certified copy of a document which is part of the record of a Court of Justice, is produced from any custody which the court in the particular case considers proper, the court may presume that the original was executed by the persons by whom it purports to have been executed. 2392 (2) This presumption shall not be made in respect of any document which is the basis of a suit or of a defence or is relied upon in the plaint or written statement.” The explanation to sub-Section (1) of Section 90 will also apply to this Section.”
51. Section 90A(1) provides that where a registered document or its certified copy being a part of the record of court is produced from the custody of court, the court may presume that the original was executed by the person by whom it is purported to have been executed. Section 90A(2), however, makes it clear that the presumption in Section 90A(1) will not be made if the said document forms the basis of the suit. The plaintiffs in the subject suit traced their title to the WILL. The WILL, therefore, formed the basis of the subject suit and hence no presumption under Section 90A(1) can be raised to the benefit of the plaintiffs.
52. Significantly, the statement made in paragraph 2 of the plaint is that “Dr. Babu Ram Garg passed away in 1958 and he had executed a will and also got it registered which is well into the knowledge of the parties”. In their written statement, the appellants denied existence of the WILL by pleading that Dr. Babu Ram Garg never executed any will. Insofar as the appellants are concerned, there was no admission. In fact, the plaintiffs were specifically put on notice by the appellants that they were disputing the WILL. The burden was on the plaintiffs to prove the WILL. The list of documents sought to be relied on by the plaintiffs included certified copy of the registered Will of Dr. Babu Ram Singh but there was no pleading in the plaint as to whether the WILL was lost or misplaced. A certified copy was only sought to be produced.
53. We may at this stage notice a few precedents on the point of a party adducing secondary evidence in the nature of certified copy.
54. In Benga Behera v. Braja Kishore Nanda24, a coordinate Bench of this Court had the occasion to observe thus: “31. A document upon which a title is based is required to be proved by primary evidence, and secondary evidence (2007) 9 SCC 728 [2025] 4 S.C.R. Rajeev Gupta & Ors. v. Prashant Garg & Ors. may be given under Section 65(c) of the Evidence Act. The said clause of Section 65 provides as under: ‘65. (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;’ Loss of the original, therefore, was required to be proved. 32. In a case of this nature, it was obligatory on the part of the first respondent to establish the loss of the original will beyond all reasonable doubt. His testimony in that behalf remained uncorroborated.” 55. Yet again, in Jagmail Singh v. Karamjit Singh25, the law was reiterated in the following words: “14. It is trite that under the Evidence Act, 1872 facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. In H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240, this Court reiterated that where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence.” 56. We do not find from the materials on record including the judgments of the trial court and the first appellate court as to whether any evidence was led that the WILL of Dr. Babu Ram Garg was misplaced or lost or not otherwise available. In the absence of evidence being led, acceptable to the court, that the original WILL was misplaced or lost or otherwise not available, the precedents above referred would apply on all fours. 57. Interestingly, the first appellate court proceeded on the basis that the WILL was accepted by the parties to the first and the second suit and, therefore, res judicata applied without, however, realising that the appellants were not parties to any of those two suits and neither (2020) 5 SCC 178 2394 was there any occasion for them to be bound by any admission or acceptance of the WILL by their predecessor-in-interest nor did the appellants ever make any such admission. 58. In such view of the matter, the inevitable conclusion that we reach is that the plaintiffs’ title to the suit property could not have been traced to the WILL of Dr. Babu Ram Garg. 59. This question too stands answered in favour of the appellants and against the plaintiffs. IV. Whether the first appellate court was right in decreeing the suit without the plaintiffs seeking relief of declaration/ cancellation? 60. The decree passed by the first appellate court reads as follows: “Civil Appeal is accepted. Judgment and order under question dated 25.02.2015 is set aside. Respondents are directed to vacate the possession of the property, possessed on the basis of disputed document dated 16.06.1992 and 29.06.1992 within 30 days and hand over the possession to the plaintiff/ appellant otherwise appellant/plaintiff will be entitled to take possession in accordance with law. So far as the question of grant of relief of injunction against Defendant No. 6 and 7 is concerned; Defendant No.6 and 7 has the possession on the ground floor of the disputed house being A. B. C. D. with the permission of the plaintiff and his father, therefore, plaintiff / appellant will be entitled to dispossess the Defendant No. 6 & 7 by filing a suit of eviction against the Defendant No. 6 & 7 in accordance with law and the plaintiff / appellant will be entitled to get the possession of the disputed property.” 61. It is, therefore, seen that the first appellate court without passing any decree in favour of the plaintiffs (i) declaring their right, title and interest in respect of the suit property; (ii) declaring that the sale deeds dated 16th June, 1992 and 29th June, 1992 did not affect their title and/or that they were not bound thereby and (iii) cancelling the registered sale deeds dated 16th June, 1992 and 29th June, 1992, granted relief by issuing a decree for recovery of possession. [2025] 4 S.C.R. Rajeev Gupta & Ors. v. Prashant Garg & Ors. 62. This Court in Anathula Sudhakar v. P. Buchi Reddy26 had the occasion to hold that where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction; however, where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction (emphasis supplied). 63. In Sopanrao (supra) too, the three-Judge bench reiterated the position by holding that in a suit filed for possession based on title the plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land (emphasis supplied). 64. We have noticed hereinbefore that the sale deeds executed by Ramesh Chand in favour of the appellants were registered. On the date the second suit was compromised by Ramesh Chand with Dr. Karam Chand, Ramesh Chand had lost title to the suit property. Legally speaking, he could not have entered into any compromise with Dr. Karam Chand and thereby confer on him any right, title or interest in respect of the suit property. Although, transfer of property by the sale deeds was well within the knowledge of the plaintiffs, neither did they bring the fact of such sale to the notice of the trial court, seized of the second suit, nor could the appellants be shown to have knowledge of the pending suit while the sale transaction was effected. In such circumstances, any compromise arrived at when the first and the second suits were pending by and between the family members of the plaintiffs in the absence of the appellants as parties to such proceedings, such compromise decrees could not have had the effect of binding the appellants. Thus, the appellants having legitimately objected to validity of the WILL in their written statement, law required the plaintiffs to prove such WILL in accordance with law. For the reasons mentioned in Section III above, we have held that the WILL was not proved. (2008) 4 SCC 594 2396 65. That apart, the plaintiffs having given up the relief of cancellation before the trial court and their attempt to insert in the plaint the prayer for relief of declaration that the sale deeds dated 16th June, 1992 and 29th June, 1992 do not affect their title and are not binding on them having been spurned by the High Court in its revisional jurisdiction, which has since attained finality, we hold that on the face of the strong opposition raised by the appellants the first appellate court acted illegally in the exercise of its jurisdiction in granting relief to the plaintiffs by passing a decree for recovery of possession without there being any decree for declaration of rights/cancellation of deeds. At the stage of exercise of jurisdiction by the appellate court under Section 96 of the CPC, the plaint in the form it was there before such court was incurably defective and no relief could have been granted to the plaintiffs. 66. The High Court, in the exercise of its second appellate jurisdiction, did not fare better. In fact, application of judicial mind to the substantial questions of law arising for decision on the second appeal is conspicuous by its absence. 67. For the reasons aforesaid, this question is also answered in favour of the appellants and against the plaintiffs. Conclusion 68. Having regard to the foregoing discussions, we have no hesitation to hold that the subject suit of the plaintiffs could not have succeeded. The trial court, in our opinion, was right in dismissing the suit. 69. The impugned second appellate judgment and decree of the High Court and the first appellate judgment and decree of the first appellate court are both set aside and that of the trial court is restored, with the result that the subject suit shall stand dismissed. 70. The civil appeal, thus, stands allowed. Parties shall, however, bear their own costs. Result of the case: Appeal allowed. †Headnotes prepared by: Nidhi Jain