JUDGMENT :

NARENDRA KUMAR VYAS, J.

1. With the consent of learned counsel for both the parties, this appeal is heard finally.

2. The appellants/defendants No. 1 to 5 have filed the Second Appeal under Section 100 of the C.P.C. challenging the judgment and decree dated 11.03.2011 passed by the learned District Judge, Raigarh District-Raigarh in Civil Appeal No. 22-A/2009, by which learned District Judge, Raigarh has allowed the appeal reversing the judgment and decree dated 15.09.2009 passed by the Civil Judge Class-2, Kharsiya, District-Raigarh in Civil Suit No. 114-A/2009 by which learned Civil Judge Class-2 has dismissed the suit.

3. The appeal was admitted on 23.02.2021 on the following substantial question of law:

(i) Whether the First Appellate Court is justified in holding that the plaintiffs have proved the title on the basis of will dated 05.05.2020 (Ex.P-1) executed by Kapileshwar by recording a finding perverse to the record?

(ii) Whether the First Appellate Court is justified in decreeing the suit of the plaintiffs without reversing the finding of the res-judicata recorded by the trial Court?

4. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 114 A/2009 which was filed for declaration of title.

5. The plaint averments, in brief, are that plaintiffs have filed civil suit before the Civil Judge, Class II, Kharsiya, District-Raigarh on 22.04.2008 for declaration that the suit properties mentioned in the schedules annexed with the plaint has been purchased by deceased Kapileshwar Patel in his lifetime on 21.02.1991 from the self income and the defendants have no title over the suit property. Defendants No. 1 to 5 have no affection and cordial relation with their father Kapileshwar. As such, defendants have not taken care of him. This was felt badly by Kapileshwar and he used to discuss this fact with defendants No. 6 and 7 who are also his sons. The brothers also had no cordial relation with each other and they are living separately. Deceased Kapileshwar had executed a will on 05.05.2000 and in pursuance of said will the property has been given in favour of plaintiffs. Kapileshwar expired on 27.02.2008. The defendant No. 9 who is the State of Chhattisgarh by its' subordinate officers in illegal manner recorded names of defendants No. 1 to 5 in the suit property along with defendants No. 6 and 7 after death of Kapileshwar. On the above factual matrix the plaintiffs have prayed that it may kindly be declared that plaintiffs have title over the suit property on the basis of will.

6. Defendants No. 1 to 5 filed written statement denying the allegations contending that plaintiff No. 1 is wife of defendant No. 6 and plaintiff No. 3 is son, plaintiff No. 2 is wife of defendant No. 7 and plaintiff No. 4 is their son. Natural guardian of plaintiff No. 3 is defendant No. 6 and natural guardian of plaintiff No. 4 is defendant No. 7. It has been specifically denied that deceased Kapileshwar from his sole income has purchased the property on 21.02.1991. It has also been denied that defendant No. 1 to 5 are in possession of the suit property. In fact, the suit property and other properties have been purchased from the income of ancestral property by Kapileshwar. As such, defendants No. 1 to 7 have also right and share on the suit property. It has also been stated that the defendants along with their father Kapileshwar have 1/8th share. It is further contended that in pursuance of the judgment and decree passed by the Civil Court, Tahsildar Kharsiya in revenue case decided on 28.09.2007 has done the partition and recorded name of defendants No. 1 to 7. The plaintiffs have no right over the suit property. Therefore, though they aware of the partition, have not raised any objection. It has also been contended that suit property mentioned in Schedule 1 belongs to defendant No. 1, Schedule 2 belongs to defendant No. 2, suit property mentioned in Schedule 3 belongs to defendant No. 3, suit pr