1

AFR

Reserved on 26.04.2022

Delivered on 06.05.2022

Court No. - 10

Case :- SECOND APPEAL No. - 356 of 2022

Appellant :- Shakti Singh Patel And Another

Respondent :- Veer Singh And 5 Others

Counsel for Appellant :- Arpit Agarwal

Hon'ble Rohit Ranjan Agarwal,J.

1.

Heard Sri Arpit Agarwal, learned counsel for the appel-

lants.

2.

This is plaintiffs’ second appeal under Section 100 of

Code of Civil Procedure (hereinafter called as “CPC”) arising

out of judgment and decree dated 13.03.2019 passed by District

Judge, Pilibhit and judgment and decree dated 08.03.2022

passed by Civil Judge (Senior Division) arising out of Original

Suit No.66 of 2012.

3.

Facts, in brief necessary to appreciate the controversy in

hand, are that the plaintiff filed an Original Suit No.66 of 2012

claiming relief of permanent injunction against the defendants-

respondents for not interfering in the property mentioned in

the plaint.

4.

Case set up by the plaintiff was that a registered Will was

executed on 08.07.1954 by one Smt. Ram Daulati in favour of

late Ram Chandra Lal, father of the plaintiffs. The testator of

the Will died in the year 1957 and since then the possession of

Second Appeal No.356 of 2022

2

late Ram Chandra Lal continued till his death and thereafter

the plaintiffs are in possession. The plaintiffs had demolished

the two storey building which was existing over the land in

dispute for constructing a new house. It was on 10.03.2012,

when the plaintiffs were trying to raise construction then the

defendants objected and tried to take forcible possession.

Hence, the suit for injunction was filed.

5.

The plaintiffs filed a list of documents which included the

electricity bill, the tax receipts etc. Despite, notice, the defend-

ants did not turn up and the trial Court proceeded ex-parte,

and on 13.03.2019 dismissed the suit on the ground that

plaintiffs claimed to be the owner in possession on the basis

of the Will deed dated 08.07.1954, which was not brought on

record and only the receipts of the Nagar Palika Parishad re-

garding house tax and water tax were filed.

6.

Against the said judgment, a Civil Appeal No.24 of 2019

was filed, the lower appellate Court framed the following

points of determination under Order 41 Rule 31 of CPC, which

are as under:-

“1.

क्य विद्व अ न्ययलय द्व परि विय गय प्रश्नग विर्णय

पत्रल प उपलब् सक्ष्य विप है?

2.

क्य

अपल

द्व

प्रस्ु

#

गय

पंजृ

वि'ंवि

08.07.1954

आ प अपल /

'गर्ण ो* विवि'

संप+, म. पहुंच है अ हीं?”

7.

During the pendency of the appeal, the plaintiffs-appel-

lants filed copy of the Will deed under Order 41 Rule 27 of

CPC, which was taken by the Court. The lower appellate Court

tried both the points together and found that the alleged Will

Second Appeal No.356 of 2022

3

dated 08.07.1954 was not proved by the appellants as required

under Section 63 (C) of the Indian Succession Act, 1925 (here-

inafter called as “Act 1925”) read with Section 68 of the In-

dian Evidence Act, 1872 (hereinafter called as “Act 1872”),

and further held that Section 90 of the Act of 1872 was not

applicable, which was in regard to the presumption of docu-

ment being 30 years old. The lower appellate Court on

08.03.2022 dismissed the appeal, hence the present appeal.

8.

Sri Arpit Agarwal, learned counsel for the appellants sub-

mitted that lower appellate Court fell into the trap by holding

that the case of the appellants was not covered under Section

90 and in fact, covered under Section 90-A (2) of the Act,

1872. According to him, both the sections operate in a differ-

ent field, and the Will dated 08.07.1954 was a 67 years old

document, and as per Section 90, the said Will should have

been presumed to have been executed by the testator in favour

of late Ram Chandra Lal. According to him, the lower appellate

Court wrongly held that the case wo