JUDGMENT :

1. The instant is the appeal by the defendant under Section 100 of the CPC. The challenge is to the judgment and decree dated 17.11.2004 passed in Civil Appeal No. 5A of 2002 passed by the First Additional District Judge, Durg. The appellate Court vide impugned judgment has reversed the judgment and decree dated 31.10.2002, whereby the Trial Court had dismissed the suit of the plaintiff. Thereby the First Appellate Court has allowed the suit for declaration in favour of the plaintiffs.

2. The instant second appeal was admitted for hearing on 23.12.2014 wherein the following substantial question of law was framed :

“Whether the first appellate Court was justified while reversing the finding of the trial Court holding that the alleged will-deed exhibit P-1 dated 09.05.1987 has been properly executed and proved in favour of the plaintiffs before the Court below or not”

3. The suit property in the instant case is the land which situates in Khasra No.321, 544, 722, 809, 1077, 1173, 1517 measuring 4.90 Hectares at Village Semariya, Tehsil Dhamdha, District Durg. The said property originally was owned by one Devantin Bai. Devantin Bai was survived by three children, son Jagdish and two daughters Daya Bai and Maitrin Bai. The plaintiff is the son of Devantin Bai.

4. According to the plaintiffs case, all the aforesaid property after death of Devantin Bai, it is the plaintiffs who would inherit the said property which stood in the name of Devantin Bai and defendant no. 1 & 2, the two sisters of the plaintiff by virtue of a Will was granted land situated at Khasra No.722 measuring 0.25 Hectares. The said property was thereafter recorded in the name of defendant no.1 & 2 in the revenue records.

5. The dispute arose when the defendant no.1 & 2 after the death of Devantin Bai applied for mutation and partition of the entire property that stood in the name of Devantin Bai and Tehsildar of Ahirwara, District Durg mutated the said land in the name of plaintiff and defendant no.1 & 2 vide order dated 22.08.1995 and ordered for partition.

6. It was here that the plaintiffs filed a Civil Suit before the trial Court which was registered as Civil Suit No. 58 A of 2002 seeking for declaration of title and permanent injunction. The claim of the plaintiff was on the basis of an alleged will that was executed on 09.05.1987. Further Tehsildar also initiated partition proceedings on the basis of mutation that was done earlier. The trial Court initially vide judgment dated 31.10.2002 dismissed the suit holding that the plaintiff has not been able to sufficiently prove the execution of the will dated 09.05.1987 executed by the Devantin Bai in favour of the plaintiff.

7. The rejection of suit vide judgment dated 31.10.2002 was subjected to challenge before the First Appellate Court vide Civil Appeal No. 5A of 2002. The First Appellate Court however did not accept the finding of the trial Court particularly as regards proving of Will is concerned and reversing the finding of the Trial Court in favour of the plaintiffs and held that the Will dated 09.05.1987 was in fact clearly proved and established by the plaintiffs before the trial Court. The First Appellate Court allowing the first appeal ordered for issuance of declaration in favour of the plaintiffs so far as his right over the suit property is concerned. It is this judgment and decree passed by the First Appellate Court allowing the appeal in favour of the plaintiffs and by grant of declaration, which stands challenged in the instant second appeal.

8. The plaintiff in support of his contentions had led evidence of three persons PW-1 Jagdish, the plaintiff himself, PW-2 Agrahit Singh Mahilang, PW-3 Jagdish Prasad Sahu. PW-2, Agrahit Singh Mahilang was the Sarpanch of Gram Panchayat, Semariya in the year 1987. According to PW-2 it was he to whom the original owner of the property Devantin Bai had made a request for preparing of the will and as per will 0.25 Hectares was to be given to in favour of the