JUDGMENT

1. This second appeal has been preferred by the appellant/defendant challenging judgment and decree dtd. 4.8.1999 passed by Additional District Judge, Umaria to the Court of District Judge, Shahdol in civil appeal No.3-A/1999 affirming the judgment and decree dtd. 12.2.1999 passed by Additional Civil Judge Class-I, Umaria in civil suit No.222-A/1997 whereby respondent 1/plaintiff’s suit for declaration of title and restoration of possession in respect of agricultural land Khasra No.155-159, 433/1, 79/483, 154, 243, 434/1 and 518 total No. 11, total area 1.997 hectare, situated in Village Tendua, Tahsil Bandhavgarh, Distt. Umaria, has been decreed.

2. Facts in short are that a civil suit was filed by respondent 1/plaintiff claiming himself to be owner/bhoomiswami of the land with the allegations that Gyaniram s/o Ram Sewak Brahman was owner of the land in question. After death of his wife, he was alone and suffering from paralysis, therefore, the plaintiff and his mother were taking care of Gyaniram, who died on 26.12.1994. Prior to his death, Gyaniram in his life time executed a Will dtd. 25.12.1994 (Ex.P/1) in favour of the plaintiff. It is also alleged that Gyaniram got opened a bank account also in the joint name of Gyaniram and plaintiff’s mother, in which an amount of Rs.22,000/- was also deposited. On inter alia allegations the suit was filed.

3. The appellant/defendant 1 appeared and by filing written statement denied the claim of plaintiff, and claimed himself to be bhumiswami and in possession of the land being successor of Gyaniram, with the further contention that entire suit land does not belong to Gyaniram because he has already sold some land to different persons. It is also contended that Gyaniram was suffering from paralysis and was not well. The plaintiff has got forged the false Will in question and in fact no Will was executed by Gyaniram in favour of the plaintiff. With these contentions the suit was prayed to be dismissed.

4. Defendant 2/State being proforma, did not file any written statement and was proceeded ex-parte.

5. On the basis of pleadings of the parties, trial court framed as many as seven issues and recorded evidence of the parties. The plaintiff in support of his case examined himself-Rajkumar Tiwari (PW-1), attesting witness-Jaikaran (PW-2), Jhagdu (PW-3) and another attesting witness Sundar Lal Yadav (PW-4) and submitted documentary evidence (Ex.P/1 to P/8). In rebuttal, the defendant 1 examined himself-Rameshwar Prasad Dubey (DW-1), Dadanram Dubey (DW-2) and Bodhram Dwivedi (DW-3) and submitted documentary evidence (Ex. D/1 & D/2).

6. After hearing arguments of the parties, trial Court while deciding issue No.1 & 4(a),(b) held that the land in question belonged to Gyaniram Brahman and is in possession of defendant 1 and while deciding issue No.2 it was held 4 that Gyaniram executed a Will in favour of plaintiff which is not a forged document and decreed the suit vide judgment and decree dtd. 12.2.1999. Upon filing civil appeal by defendant 1, first appellate Court affirmed the same, vide impugned judgment and decree dtd.4.8.1999.

7. Against the judgment and decree passed by courts below, instant second appeal has been filed by defendant 1, which vide order dtd. 8.5.2000 was admitted on the following substantial question of law :

“Whether in view of the pleading of the defendant in the written statement and the evidence led that the deceased was unconscious for the last seven days and also the fact that the deceased does not seem to have signed the will in question, in the absence of a finding on this material aspect the judgment and decree passed by the Courts below are sustainable in the eye of law ?”

8. Learned counsel for the appellant/defendant 1 submits that the plaintiff has no relation with deceased Gyaniram, and although the defendant 1 is not class-I legal heir of Gyaniram, but belongs to the family of Gyaniram and in absence of any Will, is entitled to succeed the property, wh