JUDGMENT :

P. SAM KOSHY, J.

1. Since the present two Appeals arise out of the same dispute, both these Appeals are being decided by this common Order.

2. The Second Appeal No. 628/2016 is an Appeal filed by the Plaintiffs and the Second Appeal No. 541/2016 is an Appeal by the Defendants.

3. Challenge in the Second Appeal No. 628/2016 is to the Judgment and Decree dated 22.8.2016 passed by the 3rd Additional District Judge, Ambikapur in Civil Appeal No. 33-A/2015, whereby the First Appellate Court has dismissed the Appeal preferred by the Plaintiffs. The very same Court has also dismissed the Appeal preferred by the Defendants, i.e. Civil Appeal No. 29-A/2015 vide a separate Judgment and Decree passed on the same date i.e. on 22.8.2016.

4. Facts of the case, in brief, are that the Plaintiffs-Rambali Gupta and others had filed a suit i.e. Civil Suit No. 348/2009 before the 3rd Civil Judge Class-II, Ambikapur, seeking for injunction restraining the Defendants-Kedarnath Gupta and others from interfering with the possession and construction being raised by the Plaintiffs on the suit property. The suit property in the instant case is that which situates at Khasra No. 1389, 1390 and 1397 and the construction that stands on that property. The aforesaid suit property was originally in the name of one Late Murlidhar Gupta. The Plaintiffs and the Defendants are the successors of said Murlidhar Gupta.

5. Contention of the Plaintiffs before the Trial Court was that there was a Will executed by Late Murlidhar Gupta on 19.1.1979 (Exhibit P-2) whereby the entire suit property was bequeathed in the name of the Plaintiffs and thus it was on the basis of the said Will that the Plaintiffs were seeking the relief of injunction against the Defendants. It was the further claim and contention of the Plaintiffs that the said Will (Exhibit P-2) further stood amended/modified by another modified Will dated 6.5.1981 (Exhibit P-1) whereby the portion which has been marked as blue in the schedule attached to the Civil Suit was given to the Defendants No. 2 to 7 for residential purpose. By virtue of the said Will, the Defendants No. 2 to 7 have been retaining the said property since then.

6. The claim and contention of the Defendants was that the whole of the Will Exhibit P-2 is a fake and fraudulent document which is never said to have got executed by Late Murlidhar Gupta during his life-time and the property already stood partitioned between the Plaintiffs and the Defendants during the life-time of the said Murlidhar Gupta.

7. The learned Trial Court taking into consideration the Civil Suit and the Written Statement submitted by the Plaintiffs and the Defendants, had framed 12 substantial Issues. Two of the said substantial Issues from among the 12 were: whether Murlidhar Gupta had modified/amended the earlier Will dated 19.1.1979 (Exhibit P-2) on 6.5.1981 (Exhibit P-1) and had given the right to reside over the suit property in favour of the Defendants. The other issue being, whether the Will dated 19.1.1979 and the amendment brought to it on 6.5.1981 is fake or fraudulent or not.

8. Taking into consideration the evidence that have come on record, the learned Trial Court answered the Issue No. 6 with respect to the amendment/modification in the Will dated 19.1.1979 on 6.5.1981 to be a properly executed document. The learned Civil Court gave its finding in the affirmative taking into consideration the evidence of one of the Attesting Witnesses Hari Shankar Tripathi who had clearly deposed before the Court in respect of the Will dated 19.1.1979 being executed in his presence and he being one of the Attesting Witnesses. The finding of the learned Trial Court also was on the basis of the evidence of one Dr. A.S. Dau who too had clearly deposed before the Court below in respect of the subsequently amended/modified Will dated 6.5.1981.

9. However, as regards the aspect whether the Will dated 19.1.1979 and the amended Will dated 6.5.1981 to be a fake and fraudulent docum