JUDGMENT

Goutam Bhaduri, J. - The instant second appeal arises out of the judgment & decree dated 03.01.2006 passed in Civil Appeal No.08-A/2005 by the Fifth Additional District Judge, Durg. By the said judgment, the judgment & decree dated 31.03.2003 passed in Civil Suit No.75- A/2001 by the Eighth Civil Judge, Class-II, Durg was affirmed.

2. In the instant appeal is by the plaintiff/appellant. The case of the plaintiff was that the respondent and plaintiff are real brother. In the year 1990, the father of the plaintiff namely Gendlal had given a part of his house by way of partition to the son plaintiff and thereafter, he is in possession of house till date. Subsequently, the respondent, who is brother, has disconnected the electricity and had installed a different meter. It was pleaded that the defendant/ respondent also got his name mutated in respect of house on the ground that the house has been bequeathed to him by his father. Further pleaded with respect to the mutation of the name, the objection though was raised before the municipal and other revenue authorities i.e. Nazul but the name of the respondent was recorded. The plaintiff/appellant pleaded that during the life-time of his father, the plaintiff /appellant used to look after him and after his death the entire rituals were also carried out by him. Alleging that the respondent always take the shelter of fabricated document and lies get a Will prepared by fraud on 14.01.1994 by his father Gendlal in favour of Rajkumar Soni, therefore, in order to set side the Will, the civil suit was filed.

3. The respondent denied the averments of the plaint and stated that late father Gendlal have never executed any partition. It was further stated that the plaintiff is not in possession of the suit house. Further pleaded that the father, Gendlal Soni, has executed a registered Will on 14.01.1994 and on the basis of the Will, after his death, the mutation of the name in respect of the house was recorded. Likewise in Nazul records, name of the respondent is recorded. Rest of the averments were denied.

4. The trail Court on the basis of the pleadings framed four issues and in respect of the averments of partition, it was held that after partition, the house was not given to the plaintiff /appellant. The main question with respect to Will, the finding was recorded that the Will is not outcome of fraud. Rest of the averments with respect to the court fees and relief, they are not of much significance. Against that dismissal of judgment and decree when the appeal was preferred, the appellate Court too, affirm the order of the trial Court. Thereafter, while admitting the appeal, the following substantial question of law was framed.

"Whether in the facts and circumstances of this case, a valid execution and attestation of Will dated 14.01.1994 (Ex.D/1) has not been established and the Courts below were not justified in dismissing the suit of the plaintiff based on successory rights ?"

5. Learned counsel for the appellant would submit that one attesting witness Dinesh Kumar Mishra was examined as DW-2 and the statement of the propounder of Will i.e. DW-1 Rajkumar Soni, the respondent and the statement of DW-3 Harekrishna Tiwari, who drafted the Will are contradictory to each other. Referring to the statement of DW-2, it was stated that Gendlal, according to him, the Will was prepared in the office of Harekrishna Tiwari, the Advocate, at the instance of Gendlal Soni, the father and it was given to Gendlal Soni by Advocate and before him the Will was read over. It is stated therefore the propounder had played an active roll in preparation of Will. The counsel further referred to the fact that according to this witness the Will was executed on a stamp paper and not on the plain paper, therefore, the serious contradiction exits.

6. It is contended that examination of Ex.D-1 would show that it is not on the stamp paper. Much emphasis was made that according to DW-2, the Will was not written