( 1 ) INVOKING the jurisdiction of this Court under section 100 of the Code of civil Procedure, this appeal takes an exception to the judgment and decree dated 30- 6-1989 passed by the Additional District judge in Regular Civil Appeal No. 202/1985, whereby the appeal is allowed and the judgment and decree dated 15-10-1985 passed by the trial Court in Regular Civil Suit No. 119/ 1981 has been set aside by which the respondent-defendant was directed to deliver the possession of the suit house, cattle shed and the open space forming the suit property to the plaintiff with further direction to hold enquiry into the mesne profits under Order 20, Rule 12 of the Code of Civil procedure.

( 2 ) BRIEF facts are as under: the plaintiff owns a house on the area admeasuring 150 x 150 quibits. This property was owned formerly by the Krushna sada Kuratkar, who made a gift of the same to Mahadeo Zolbaji, the father of the plaintiff as well as the defendant. Thereafter, on 11-1-1950 Mahadeo had executed the will bequeathing the property exclusively to the plaintiff as it was his self acquired property. Mahadeo died on 23-4-1958. The defendant is real brother of the plaintiff. He had no separate house for residence, and therefore, he was inducted into the suit house as a licensee. The licence was terminated by serving notice dated 17-8-1981 to which the defendant had given reply on 14-9-1981 and he disputed the ownership of the plaintiff. The defendant did not dispute the previously the property was owned by Krushna Sada who had gifted the said property to the father of the plaintiff and defendant by name mahadeo and that Mahadeo died on 23-4-1958. The defendant has contended that he is in possession of the suit house as an owner. The property was not self acquired property of Mahadeo and he could not have executed the Will in favour of the plaintiff in exclusion of the defendant.

( 3 ) THE trial Court on appreciation of the evidence, recorded the finding that the plaintiff has proved that by virtue of will deed dated 11-1-1950, he became the owner of the suit property as the said will was the last will of the testator Mahadeo and it was legal and valid will. The trial Court also recorded the finding that the defendant was a licensee in the suit premises and did not acquire title to the suit property by adverse possession. Consistent with these findings, the trial Court decreed the suit and directed the defendant to deliver the possession. Being aggrieved by this judgment and decree passed by the trial Court, the defendant carried appeal to the District Court. The learned Additional District Judge by his judgment dated 30-6-1989 allowed the appeal and set aside the judgment and decree passed by the trial Court and dismissed the suit. This judgment and decree passed by the lower appellate Court is under challenge in this appeal.

( 4 ) MR. Bapat, learned counsel for the plaintiff contended that the trial Court has correctly appreciated the evidence on record and recorded findings that the certified copy of will (Exh. 34) was made admissible in evidence as per section 65 of the Indian evidence Act and due to the fact that the original will though not filed on record but produced before the Court was a thirty years old document and the defendant on the other hand had tried to rebut this document by saying that it was got executed by the plaintiff by using misrepresentation and undue influences on deceased Mahadeo but this contention of the defendant is not supported by any oral evidence. Mr. Bapat further contended that the trail Court has rightly relied on the decision of the Apex court in the case of K. V. Subaraju v. C. Subbaraju - A. I. R. 1968 SC 947 to support the preposition that the production of the copy of the Will purporting to be 30 years old, is admissible in evidence and the presumption under Section 90 of the Evidence act is in relation to the execution, attestation, etc. in support of Will can be drawn if the document of Will is mor

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