JUDGMENT :

1. Present second appeal under section 100 of Civil Procedure Code has been filed against the judgment and decree dated 20-9-2006 passed by Fourth Additional District Judge (Fast Track), District Shivpuri (M. P.) in Civil Appeal No. 18-A/2006 affirming the judgment and decree dated 29-3-2006 passed by the Third Civil Judge, Class-II, Shivpuri in Civil Suit No. 21-A/2005 by which the suit of respondent/plaintiff was decreed.

2. Factual matrix of the case, in brief, are that the plaintiff/respondent instituted the Civil Suit seeking recovery of possession of suit property.

3. In the plaint, it was averred that Chintulal, the father of plaintiff Kalicharan purchased the suit property on 28-9-1953 by a registered sale deed. After obtaining the permission of the Municipal Council in the year 1971, he constructed a house on this property (hereinafter referred to as the suit house). It was also averred that Fodalia (grandfather of plaintiff) had two sons Chintulal and Rajore. Respondent/Plaintiff Kalicharan and Raghuveer are the sons of Chintulal. Appellant/defendant Ghanshyam is the son of Raghuveer who (Raghuveer) was adopted by his uncle Rajore and is still in possession of Rajore’s properties. Chintulal executed a registered Will on 20-4-1976 in favour of the plaintiff Kalicharan. After the death of his father, the plaintiff Kalicharan is in possession of the suit house purchased on 28-9-1953.

4. It is further pleaded that about four years ago, the defendant, who is the nephew of plaintiff and son of Raghuveer, came to Shivpuri and on his request the plaintiff accommodated him in two rooms in the suit house and, since than, the defendant is residing in these two rooms with the permission of the plaintiff. On 15-6-2005, the plaintiff asked the defendant to vacate the rooms occupied by him. However, the defendant refused to vacate these rooms. Thereafter a notice was sent to the defendant on 28-6-2005, which was replied by him on false, fabricated, baseless and concocted grounds. Therefore, plaintiff has filed the present civil suit against the defendant seeking relief of recovery of possession.

5. The defendant filed his written statement on 16-9-2005 contending that the suit house was purchased by the father of Chintulal i.e. Fodalia on 28-9-1953 in the name of his son Chintulal, therefore, the house purchased by the grandfather of defendant is an ancestral property. It was also averred that the defendant is residing in this house since his birth and in the year 1998 got rooms and kitchen constructed in it.

6. It was also pleaded that Chintulal S/o Fodalia died on 20-2-1976, and therefore, the registered Will alleged to have been executed on 20-4-1976 is a forged document. It was also pleaded that the suit house was constructed in the year of 1971 with the joint investment of Chintu Lal and Raghuveer. The defendant completed his education at Shivpuri while residing in the same house. The suit is filed on false grounds, therefore is liable to be dismissed.

7. On the basis of the aforesaid pleadings, the learned trial Court framed as many as four issues in the matter and parties led evidence to prove the said issues in their favour. The learned trial Court after appreciation of the evidence made available on record, vide its judgment and decree dated 29-3-2006 allowed the suit filed by the plaintiff/respondent.

8. Being aggrieved by the aforesaid judgment of the trial Court, the appellant/defendant preferred First Civil Appeal No. 18-A/2006 before the Lower Appellate Court which was also dismissed by affirming the judgment and decree passed by the learned trial Court, therefore, appellant/defendant has occasion to file this second appeal under section 100 of Civil Procedure Code.

9. Assailing the findings recorded by the learned Courts below, learned counsel for appellant/defendant submits that the learned Courts below committed error of law while raising presumption under section 90 of the Evidence Act regarding execution of the