Point of Law: Section 90 of Act reads as Presumption as to documents thirty years old.

JUDGMENT :

1. The present second appeal has been preferred against the judgment and decree dated 26.02.2015 passed by the Additional District Judge No.3, Bikaner in Civil Appeal No.112/2012 whereby the appeal against the judgment and decree dated 21.03.2007 passed by the Additional Civil Judge (Jr. Division) No.2, Bikaner has been dismissed and the judgment of the trial Court decreeing the suit of the plaintiff for possession has been affirmed.

2. The brief facts of the case are as under:

3. The plaintiff Meghraj son of Gordhandas preferred a suit for possession and mesne profits against the defendants with a submission that the residential property in question was purchased by his father Gordhandas in the year 1941 but Gordhandas, just for the satisfaction of his father Balkishan, got the patta of the said property prepared in the name of Balkishan. Subsequently, because of the fact that the property was purchased by Gordhandas only, Balkishan executed a will dated 11.07.1949 in favour of Gordhandas which was registered on 13.07.1949. In the year 1970, vide a registered sale deed dated 13.02.1970, the suit property was sold by Gordhandas to his son Meghraj, the plaintiff and since then he is in possession being the owner of the property. In the year 1975, half of the property was encroached upon by Vishnu Dutt, brother of the plaintiff and father of the defendants. It has been averred in the plaint that possession of Vishnu Dutt Joshi on the suit property was illegal and after his death, that of the defendants is also illegal and the plaintiff is entitled to get back the possession of the property, he being the rightful owner of the same. A prayer for mesne profits qua the user of the property was also made.

4. The case of the defendants had been that the land was purchased by Balkishan only and since the purchase, all his sons remained in possession of the property as coparceners. The property was orally partitioned by Balkishan during his lifetime and in terms of the said oral partition, the disputed property was allotted in favour of Gordhandas. The defendant was in possession of the disputed property since the year 1957 being the son of Gordhandas. Balkishan was not in good health and the will had not been executed by him in a sound state of mind. Further that, because of the long and uninterrupted possession since the year 1957, the title in favour of Gordhandas, even if any, stood extinguished in view of the adverse possession of the defendants. Further that Gordhandas had no right to sell the property as he was not the exclusive owner but was one of the coparceners. Criminal proceedings under Section 145, Cr.P.C. on total wrong facts were also initiated by the plaintiff against the defendants but the same was also dismissed.

5. The suit as preferred by the plaintiff was partly decreed by the trial court and the defendants were directed to hand over the physical possession of the disputed property to the plaintiff within a period of two months. Appeal against the judgment and decree dated 21.03.2007 preferred by the defendants has also been dismissed vide judgment and decree dated 26.02.2015.

6. Aggrieved against the same the present second appeal has been preferred.

7. The primary ground argued before this Court by counsel for appellants is that the Courts below have erred in relying upon the will dated 11.04.1949 whereas the same could not have been held to be proved, as in terms of Section 68 of the Evidence Act, 1872 it was mandatory for at least one of the attesting witnesses to the said will to have deposed and proved the said document. As the plaintiff himself admitted that one of the attesting witnesses was alive, he ought to have been produced in the witness box and the same having not been done, the will could not have been said to be proved in terms of Section 68 of the Evidence Act. Learned counsel pointed out the specific admission of the plaintiff Meghraj (PW-1) in his statements, recorded in the year 1990 that L