ROSHAN LAL S/O JAIJUG Vs. MOHARLAL

JUDGEMENT

(1.) This plaintiff's second appeal under Section 100 of the CPC was admitted for hearing by formulating the following substantial question of law: -? "Whether the judgment and decree passed by the first appellate court regarding the will (Ex.P/2) is doubtful, not proved and consequently illegal, is perverse ?" (For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the plaint before the trial Court.)

(2.) The suit property was originally held by Dashrath. He is said to have executed a unregistered Will in favour of the plaintiff on 28.11.94 (Ex.P-?2) bequeathing the suit property owned by him. Dashrath died in the year 1998, after his death, the plaintiff got his name mutated in revenue records, but thereafter defendant No.1 on the basis of earlier Will dated 23.10.97 (Ex.D-?1) alleged to have executed by Dashrath in his favour preferred an appeal before the appellate authority. The Sub-? Divisional Officer (R.), Surajpur set aside the order of mutation and remanded the matter to the Tahsildar for passing the order afresh in accordance with law, which necessitating the filing of the suit for declaration of title and permanent injunction by the plaintiff stating inter-?alia that he is title-?holder of the suit land on the basis of Will dated 28.11.94 (Ex.P-?2) executed by Dashrath in his favour, whereas the defendants set-?up a plea that before execution of Will in favour of the plaintiff on 28.11.94 (Ex.P-?2), Dashrath has also executed a Will in his favour on 23.10.97 (Ex.D-?1), as such, the suit be dismissed.

(3.) The trial Court after appreciation of oral and documentary evidence available on record, by its judgment and decree dated 27.8.2003, decreed the suit holding that Dashrath had executed a Will in favour of the plaintiff and the plaintiff has proved the execution and attestation of Will in his favour in accordance with law. On appeal being preferred by the defendants, the first appellate Court reversed the judgment and decree of the trial Court and dismissed the suit holding that the plaintiff has failed to prove the due execution and attestation of Will in accordance with law. Questioning the judgment and decree of the first appellate Court, this second appeal under Section 100 of the CPC has been preferred by the appellant/plaintiff before this Court, in which substantial question of law has been formulated which has been set-?out in the opening paragraph of this judgment.