JUDGMENT

This appeal under section 100 of the CPC arises from the concurrent finding of fact relating to valid execution of the Will, purportedly executed by one Alpana Roy Barman (Karmakar) wife of the first respondent and as recorded in the judgment dated 17.12.2018 passed by the First Appellate Court [the court of the Additional District Judge No.2, West Tripura, Agartala] in Title Appeal 57 of 2016. Needless to mention that by the said judgment dated 17.12.2018, the First Appellate Court has affirmed the judgment dated 23.07.2016 delivered in Title Suit 03 of 2014 by the Civil Judge, Junior Division, Court No.1, Agartala, West Tripura.

[2] By the said judgment dated 23.07.2016, the suit instituted by the appellant for declaration of right, title and interest over the suit land as described in Schedule A which include the schedules B and C. The ownership of the suit land has been claimed by the appellant by virtue of the Will dated 22.11.1989 executed by one Alpana Roy Barman (Karmakar), the testatrix. Along with the declaration as aforestated consequential reliefs of permanent injunction and recovery of possession of the land as described in the Schedule B (the part of the Schedule A land) by evicting the tenant, the respondent No.9. Both the courts below have recorded their finding that suspicious circumstances surrounding the execution of the Will as stated could not be removed by propounder (the plaintiff) and as such no reliance can be placed on the said Will for purpose of determining the title over the suit land. It is admitted that the appellant was never in physical possession of the suit land. The eviction of the respondent No.9 is therefore sought on the basis of the purported appeal.

[3] At the time of admission, the following substantial question of law had been formulated by this court for purpose of hearing this appeal by the order dated 27.03.2019:

“Whether if the defendant does not prove elements constituting suspicion, can the propounder be saddled with the obligation of removing the suspicious circumstances?”

[4] The essential fact for purpose of determining the appeal be introduced briefly at the outset. The suit land, the title of which has been claimed by the appellant (the plaintiff) pertains to Khatian No.521 old plot No. 2717, corresponding to the new plot No.4644 at Mouja Jogendranagar, District: West Tripura measuring 0.05 acre, which has been elaborately described in the Schedule A of the plaint. The appellant has further stated in the plaint that out of the schedule A land, a piece of land with hut measuring to 2 karas has been unlawfully occupied by a tenant (the respondent No.9) and as such recovery of the said land which has been more elaborately described in the Schedule B, has been sought.

[5] According to the appellant, the testatrix executed one Will by bequeathing the suit land on 22.11.1989 which was scribed by one Laxman Chandra Das. The testatrix executed the said Will by putting her signature on the Will (Exbt. 1). It has been asserted by the appellant that the testatrix purchased the suit land in the year 1982. Since the appellant became close to the testatrix for providing care and aid, even though the appellant is unrelated to the testatrix, the testatrix bequeathed the said property to the appellant by executing the said Will. Even the appellant was made the executor of the said Will but the Will was, for the reason undisclosed, handed over to one Smt. Bani Debbarma (PW3). Bani Debbarma handed over the said Will after 23 years in 2012. The reason for such de