JUDGMENT :

1. The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the appellant/plaintiff are as under:

“1. Whether the lower justified in reversing the Trial Court on the basis of will deed dated 17.04.2006 same executed by fraud.

2. Whether at the time of will deed dated 17.04.2006 Appellate Court judgment of the disbelieving the and treating the execution of the late Laxmin Bai was medically fit enough to execute the same.”

2. The additional substantial question of law ws formulated on 23.7.2021 as under:

“Whether the first appellate Court is justified in partly setting aside the judgment and decree of the trial Court in favour of the plaintiff holding that the decree for declaration of title is barred by the proviso to Section 34 of the Specific Relief Act, by recording a finding which is perverse to the record ?”

[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court].

3. Learned counsel appearing for the parties were noticed and they were heard on additional substantial question of law.

4. The plaintiff filed a suit for declaration of title and permanent injunction stating interalia that Laxmin Bai had executed Parwastinama in favour of the plaintiff on 30.7.2004 (Ex.P4) and thereby he became titleholder and in possession of the suit land, in which defendant No.1 is interfering by strength of Will dated 17.4.2006 (Ex.D4).

5. Resisting the suit, defendant No.1 filed his written statement and denied the averments made in the plaint stating interalia that Will dated 17.4.2006 (Ex.D4) has duly been executed by Laxmin Bai in his favour and he is in possession of the suit land and cultivating the suit land, as such, the suit be dismissed with cost(s).

6. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment and decree dated 04.10.2020, partly allowed the suit holding that the plaintiff is titleholder of the suit land by Parwastinama dated 30.7.2004 (Ex.P4), but he is not in possession of the suit land, rather defendant No.1 is in possession over the suit land, therefore, dismissed the suit relating to permanent injunction, against which, defendant No.1 preferred first appeal before the first appellate Court challenging the judgment and decree of the trial Court granting decree for declaration of title in favour of the plaintiff. The first appellate Court by the impugned judgment and decree held that though Will dated 17.4.2006 (Ex.D4) executed by Laxmin Bai in favour of defendant No.1 is not proved, yet allowed the appeal holding that since the plaintiff is not in possession over the suit land, therefore, decree for declaration of title could not have been granted in favour of the plaintiff in view of proviso to Section 34 of the Specific Relief Act, 1963 (hereinafter called as 'Act of 1963'), against which, this second appeal under Section 100 of the CPC has been preferred by the appellant/plaintiff, in which two substantial questions of law have been framed, which have been setout in opening paragraph of this judgment for sake of completeness.

7. Mr.Ashok Kumar Swarnkar, learned counsel for the appellant / plaintiff, would submit that the first appellate Court has committed legal error in granting the appeal by dismissing the suit in toto after having held that defendant No.1 has failed to prove his title over the suit land on the basis of Will dated 17.4.2006 (Ex.D4) as the first appellate Court has clearly recorded a finding that defendant No.1 has failed to prove due execution and attestation of Will by Laxmin Bai in his favour and since the plaintiff has already claimed the relief of permanent injunction, therefore, the suit was not barred by proviso to Section 34 of the Act of 1963. He would rely upon the judgment of the Supreme Court in the matter of C. Mohammad Yunus v. Syed Unnissa and others, AIR 1961 SC 808.

8. On the other hand, Mr.Anil Tripat