ORDER

This second appeal under Section 100 of Code of Civil Procedure has been filed against the judgment and decree dated 26.08.2017 passed in regular civil appeal No. 2-A/2017 by the Second Additional District Judge Karera District Shivpuri (M.P.), whereby, first appeal filed by the appellants has been dismissed and the judgment and decree dated 31.1.2012 passed in Civil Suit No.274-A/2009 by 1st Civil Judge Class II Karera, District Shivpuri, has been affirmed.

Precisely stated facts of the case are that plaintiffs- appellants filed a suit for declaration of title and permanent injunction mentioning therein that their father namely Ramcha son of Bihari Jatav was the Bhumiswami of 6.14 hectare of land situated at village Bamhari Tahsil Karera Distt. Shivpuri. Defendant No.1- Mahila Dhanku is his daughter and defendant No.3- Mahila Ramiyan is his widow. Mahila Siya, was also the daughter of Ramcha, but she died before the death of Ramcha and there is no heir of her. Ramcha in his life time after solemnizing marriage of Mahila Dhanku and Mahila Siya and giving dowry, separated them. Ramcha with a view that no dispute would be created after his death, executed a will in favour of the plaintiffs without any undue pressure in regard to his land, residential house and movable and immovable property. The said Will was executed in front of attesting witnesses Heeralal and Rammu and Heeralal made his signatures and Rammu affixed his thumb impression on the Will. Thereafter on

8.2.1993 the said Will was registered in the office of Sub- Registrar, Karera. Ramcha during his life time resided with the plaintiffs and after his death, his last rites were performed by the plaintiffs. Mahila Ramiyan after death of Ramcha is residing along with plaintiffs and plaintiffs are looking after her. After death of Ramcha, plaintiffs filed an application for mutation in Tahsil Court, Karera and after following due process of low got mutated the aforesaid land in their favour on 10.11.1995 and their name was entered in the revenue record as Bhumiswami. They also took possession of all movable and immovable properties of Ramcha. Due to need of money, they sold some part of land of survey Nos.1022, 1023, 1025 and 1026 in favour of defendants Brijesh and Ravi on 18.6.2002 and 2.7.2002 and since then they are cultivating the said land as Bhumiswami. It is further mentioned in the plaint that plaintiffs get the remaining land partitioned amongst them by filing proceeding before Tahsildar Karera, but the same has not been entered in the revenue record. Defendant Nos.1 and 4 & 5 have no right over the said land and plaintiffs have been cultivating the said land since long and paying taxes.

It is further mentioned in the plaint that defendant No.1 under the influence of some villagers of the village filed an appeal before SDO, Karera, against the order of Tahsildar Karera in mutation case No.103/94-95/A-6 dated 10.11.1995 which was dismissed by the SDO, Karera, vide order dated 17.12.2002. Thereafter defendant No.1 filed revision before the Collector, Shivpuri, who remanded the case back to SDO Karera. Before the SDO, Shri Abdul Kayum Beg Advocate was representing their case, but on 2.3.2009 he did not appear without any intimation to the plaintiffs, and thereafter vide order dated 29.6.2009 ex-parte order was passed against the plaintiffs without their knowledge. On 1.10.2009 defendant No.1 went to disputed land and informed the plaintiffs that she has obtained order in her favour from the Court of SDO, Karera, and after mutating 1/3 portion of the land in her name, she would sell the same, and therefore, plaintiffs have filed the suit for declaration of title and permanent injunction in respect of the land mentioned in para 2 of the plaint except the land sold by them to defendants No.4 & 5.

The learned Civil Judge after adducing the evidence of the parties, found that execution of the Will dated 25.1.1993 has not been proved and plaintiffs are not the sole o