JUDGMENT :

NARENDRA KUMAR VYAS, J.

1. The second appeal has been filed by the appellant/plaintiff under Section 100 of the C.P.C. against judgment and decree dated 12.07.2010 passed by First Additional District Judge, Surajpur, District-Surguja (C.G.) in Civil Appeal No. 55A/2011 (Ramlal vs. Bulaki and Others) affirming the judgment and decree dated 12.07.2010 passed by Second Civil Judge Class-II, Surajpur, District-Surguja (C.G.) in Civil Suit No. 192A/2008.

2. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 192A/2008 which was filed for declaration of title and for grant of permanent injunction.

3. This second appeal has been admitted for hearing by this Court vide order dated 28.06.2021 on the following substantial question of law:

“Whether both the Courts below were justified in holding that plaintiff has failed to prove Will (Ex.P/1) dated 14.04.1973, executed by Jholi by recording a finding which is perverse to the record?”

4. The brief facts, as reflected from the plaint averment, are that the plaintiff has filed a civil suit for declaration of title and permanent injunction of suit property mentioned at Schedule-A of the plaint area admeasuring 15.08 acres situated at Village-Khopa, Patawari Halka No. 23, Revenue Circle-Bhatgaon, Tahsil-Surajpur, District-Surguja (M.P.) (now C.G.) on 06.05.1994 mainly contending that the parties are Hindu, governed by Hindu law and genealogy describing the relation between the plaintiff and defendants has also been mentioned in the plaint. It has been further contended that as per survey settlement, the suit land was recorded in the name of the plaintiff's grandfather namely Late Ganesh, Late Jholi, Late Kanhai and Late Rodi, they all are real brothers. After survey settlement, they have partitioned the property and they are in possession of their respective share, which they have received in the partition. It has been further contended that Jholi was issue-less, as such, the plaintiff became adopted son of Jholi and he was looking after him. Due to care and love and affection, he has executed a Will on 14.04.1973 in favour of the plaintiff, since then he was inheriting the property peacefully. After death of Kanhai, defendants No. 1 and 2 have recorded their names in the revenue record and filed an application before the Naib Tahsildar, Bhatgaon for mutation. Accordingly, the suit property was divided into one half share. Defendants No. 1 and 2 after obtaining share have sold some part of property to respondents No. 4 to 6, which has been mentioned as Schedule-B of the plaint through registered sale-deed on 02.02.1994 for Rs. 52,000/-. As such, the sale-deed executed by defendants No. 1 and 2 are null and void.

5. It has been further contended that no intimation with regard to the partition proceeding was given to the plaintiff and no opportunity of hearing was provided to the plaintiff by the Naib Tahsildar to make his defence, as such, the partition proceeding conducted by Naib Tahsildar is illegal. Defendants No. 1 and 2 on the basis of partition and after sale of the property mentioned at Schedule-B of the plaint, are making an attempt to dispose the plaintiff from the suit property, which has necessitated the plaintiff to file suit for declaration of title and for grant of permanent injunction. On above factual foundation, it has been prayed that the plaintiff may be declared title holder of ¼ share of the property inherited by Late Jholi as mentioned at Schedule-C of the plaint. The defendants may be restrained from interfering in the peaceful possession of the plaintiff over the property mentioned Schedule-C of the plaint.

6. Defendants No. 1 to 3 have not filed written statement. Defendants No. 4 to 7 have filed written statement denying the allegations made in the plaint mainly contending that Late Jholi has never adopted the plaintiff as his son. It has been further contended that the property mentioned at Schedule-A of the p