JUDGMENT

1. This second appeal, under section 100 of CPC, has been filed against the judgment and decree dated 11.12.2018 passed by First Additional District Judge, Narsinghpur in Civil Appeal No.19/2018, arising out of the judgment and decree dated 27.2.2018 passed by the Fifth Civil Judge, Class-II, Narsinghpur in Regular Civil Suit No.9-A/2015.

2. The appellant is the plaintiff, who had filed the suit for declaration of title, permanent injunction as well as the amendment in the revenue record dated 20.5.2013 passed by the Tahsildar, Narsinghpur as null and void. The appellant has lost his case from both the Courts below.

3. According to the plaintiff, the disputed land is Khasra No.89/3, area 0.841 hectares, Khasra No.125/2, 127/2, area 1.035 hectares, situated in Narsinghpur, District Narsinghpur is the disputed property.

4. It is the case of the plaintiff that he is in possession of the disputed property for the last 15-16 years. The property in dispute was the self-acquired property of his father late Shri Suresh Narayan Tiwari. Since the plaintiff had looked after his father for 10 long years and had spent Rs.2,00,000/- lacs on his treatment, therefore, on 20.6.2012 the father of the plaintiff executed a Will in his favour. A house situated in Mahajani Ward, Narsinghpur was bequeathed to the defendant no.1 Rajendra Kumar Tiwari, in which he was residing.

5. It was further pleaded that after the death of his father, the defendant No.1 also got his name mutated in the revenue records jointly with the plaintiff. The order dated 20.5.2013 passed by the Tahsildar in this regard is vitiated being violative of the mandatory provisions of section 110 of MPLR Code. The appellant came to know about the said illegal mutation on 27.6.2014 when he obtained the photocopy of Khasra Kist Khantoni of the year 2012-2013. It was also pleaded that defendants No.1 to 4 are threatening that they would create obstruction in carrying out the agricultural activities and accordingly a suit was filed for the declaration of his title on the basis of Will as well as for permanent injunction and for setting aside the order dated 20.5.2013.

6. The defendants no.1 to 6 filed their written statement and denied the plaint averments. It was claimed by them that the property in dispute is the ancestral property of Late Shri Suresh Narayan Tiwari and, therefore, all the defendants have equal share in the same after the death of Late Suresh Narayan Tiwari. The names of the plaintiff as well as the defendants No.1 to 6 were jointly recorded in the revenue records. Accordingly, it was prayed that the plaintiff and defendants No.1 to 6 have equal share in the property.

7. After a recovery notice was received from Central Bank of India, Narsinghpur, the plaintiff had sent a notice dated 2.4.2013 through his counsel Shri Ramesh Singh Chauhan and in the said reply also the plaintiff had admitted that the defendants No.1 and 2 have 1/3rd share and in the said notice the plaintiff had not disclosed about execution of any Will in his favour and thus, it was claimed that Late Suresh Narayan Tiwari has never executed any Will and it was claimed that in fact the plaintiff has created a false and forged document of Will and accordingly prayed for dismissal of the suit.

8. The trial court, after framing issues and recording evidence, dismissed the suit by holding that the plaintiff has failed to prove the execution of Will by his father in his favour.

9. Being aggrieved by the judgment and decree passed by the trial Court, the appellant preferred an appeal, which too has been dismissed by the First Appellate Court.

10. Challenging the judgments and decree passed by the Courts below, it is submitted by the counsel for the appellant that the Courts below failed to see that Late Shri Suresh Narayan Tiwari had executed a Will in favour of the appellant. The said Will was executed out of his own volition and accordingly has proposed the following substantial questions of law :-

“(i