JUDGMENT Om Prakash, J. - This is a second appeal by the plaintiff-appellant against the judgment and decree dated 23rd January 1981 of the learned Civil Judge, Mirzapur, holding that the plaintiff was the owner in possession of half portion in the suit house and reversing the decree of the trial court declaring the plaintiff as owner of th portion of the suit house. 2. The plaintiff filed a suit for declaration, inter alia, that he was the owner of the entire suit house. The plaint contained the following dedigree:- 3. The plaint case was that both the sons of Dwarka had purchased the suit house under a registered sale deed dated 12.2.1885 from Sri Ganga Dhar Khandelwal; that Sri Badri Prasad was married only with Mst. Gaura and he had no other wife; that Sri Badri Prasad relinquished his half share in the suit house in favour of his brother Gauri Shanker under the deed dated 15.4.1909 that thereafter Sri Gauri Shanker became the sole owner of the suit house; that on 20th April, 1921 Sri Gauri Shanker executed a will, which was never registered, in favour of the plaintiff's father; that Sri Gauri Shanker died issue-less about 40 years ago and then the plaintiff's father became the sole owner of the suit house; that on the death of Sri Bhola Nath, the entire suit house devolved upon the plaintiff; that one Smt. Mahadei was a tenant of eastern half portion of the suit house and after her, the defendant became the tenant of the same; that he was liable to be ejected, as he defaulted in the payment of rent despite demand; that the defendant started setting up his own claim to the eastern portion of the suit house and he started making constructions in the said portion and, therefore, the plaintiff filed the suit for declaration and injunction. 4. 4. The defendant filed a written statement and alleged that Sri Badri Prasad had two wives, namely, Smt. Gaura and Smt. Mahadei; that the latter had three daughters; that the defendant is the spouse of Smt. Surja, one of the, daughters of Smt. Mahadei; that no relinquishment deed and the will were executed, by Sri Badri Prasad and Sri Gauri Shanker respectively; that the will is fictitious; that after the death of Sri Badri Prasad, who died about 25 years ago, Smt. Mahadei and the father of the plaintiff both became the owners in possession of the suit house in moiety; that Smt. Mahadei and the defendant were never tenants of the eastern half portion of the house and that remained in possession of Smt. Mahadei from the beginning that Smt Mahadei transferred her half share to the defendant under the sale deed dated 5th July, 1968 and, therefore, he is entitled to raise constructions on the eastern half portion. 5. The trial court took the view that there was no valid relinquishment deed, in as much as that was never registered; that the will dated 20th April 1921 will be presumed to have been validly executed in favour of the plaintiff's father under Section 90 of the Evidence Act; that Smt. Mahadei was the wife of Sri Badri Prasad and, therefore, the plaintiff was entitled only to th share. 6. On appeal, the learned Civil Judge, reversed the finding of the trial court that the will would be presumed to be a genuine document under Section 90 of the Evidence Act. He was of the view that the plaintiff filed a suit earlier against the defendant, which was withdrawn by him on 22nd March 1969. In that suit, no reference was made to the will and, therefore the learned Civil Judge was of the view that the will dated 20th April, 1921 was not free from suspicion. He therefore, held that no presumption of genuineness could be raised under Section 90 of the Evidence Act. That was why he held that the plaintiff was entitled to half portion only in the suit house and that the remaining half portion belonged to Smt. Mahadei, who transferred the same to the defendant. 7. He therefore, held that no presumption of genuineness could be raised under Section 90 of the Evidence Act. That was why he held that the plaintiff was entitled to half portion only in the suit house and that the remaining half portion belonged to Smt. Mahadei, who transferred the same to the defendant. 7. The submission of Sri G. P. Bhargava, learned counsel for the appellant, is that the appellate court was in error in having doubted the genuineness of the will dated 20th April, 1921. He further, submitted that no doubt could be raised as to genuineness of the will, simply on the ground that no reference was made to that in the earlier suit, which was withdrawn by the plaintiff on 22.3.1969. Sri Bhargava submitted that the earlier suit was withdrawn, because that was defective. According to the learned Civil Judge, the plaintiff gave the following pedigree in the earlier suit: It has come in evidence that the name of the plaintiff is Ganesh Prasad alias Gungar. The short-point for consideration is whether an inference can be drawn that the will is fictitious, simply because it was not referred to in the earlier suit Ordinarily, whether a will is fictitious or genuine-this question is a question of fact, but a question of law arises in this appeal in view of Section 90 of the Evidence Act, which raises a presumption about the proper execution of the document, which is more than 20 years old and coming from a genuine custody. The question is whether the plaintiff would be deprived of the benefit of Section 90 of the Evidence Act and whether the will can be regarded as a suspicious document, simply because the plaintiff failed to refer to it in the earlier suit? 8. The submission of Sri Bhargava is that not one, but several mistakes were committed in the earlier suit by learned Counsel of the plaintiff and, therefore, the suit had to be withdrawn. This submission seems to be correct. The plaintiff clearly stated that the suit house was acquired by the two sons of Dwarika Prasad under a registered sale deed dated 12.2.1885. This case is not denied by the defendant. It is note-worthy that the registered sale deed dated 12.2.1885 was also not referred to in the earlier suit and the suit house was wrongly claimed of the time of Dwarka Prasad. This case is not denied by the defendant. It is note-worthy that the registered sale deed dated 12.2.1885 was also not referred to in the earlier suit and the suit house was wrongly claimed of the time of Dwarka Prasad. Admittedly, the suit house is not of the time of Dwarka Prasad and, therefore, there was a patent error in the earlier suit. The pedigree to the extent it is stated in the instant suit by the plaintiff, is not denied by the defendant. What the defendant has alleged is that Badri Prasad had two wives and not one. In the earlier suit the pedigree shown by the plaintiff, was admittedly incomplete. So, there was not only the omission of the vital document, namely, the will dated 20.4.1921 but also of another vital document, i.e. the registered sale deed 12.2.1985, and also of the vital fact that Dwarka Prasad had two sons and not one. Therefore, no adverse inference on the facts and circumstances of this case could be drawn from the omission of the will being referred to in the earlier suit. No mala fide can be attributed to the omission of vital document, i. e. the registered sale deed dated 12.2.1885 in the earlier suit. This being a registered document would have been referred to in the earlier suit without any difficulty. The omission of this document clearly shows that the plaintiff set up the earlier case erroneously and when the mistake was discovered, the suit was withdrawn. There was not only the omission of the will, which is unregistered, but even of the registered document and of admitted facts. The plaintiff's case ought to have been seen by the appellate court in the setting of the above facts. No other reason has been given by the appellate court to doubt the genuineness of the will. Ordinarily, the will would have been in the custody of the plaintiff and he produced that document. There being no good reason to doubt the genuineness of the will, the same will be presumed to have been duly executed and attested under Section 90 of the Evidence Act, as the document is of more than 20 years old and remained in proper custody. The genuineness of the will cannot be impugned on the ground as stated by the appellate court. 9. The case of the plaintiff can be seen from another angle. The genuineness of the will cannot be impugned on the ground as stated by the appellate court. 9. The case of the plaintiff can be seen from another angle. If the plaintiff intended to fabricate a document and rely upon the same, then he would have been extra ordinary cautious from the very inception and would not have committed the mistake, which he had committed by having filed the earlier suit with wrong facts. If the will were not genuine, then the plaintiff would not have ventured to rely on it, specially in view of the fact that he had to withdraw the suit earlier. The submission of the plaintiff that the earlier suit had to be withdrawn because that contained incorrect and inadequate facts, seems to be correct. The reason given by the appellate court to doubt the genuineness of the will dated 20th April, 1921, does not appear to be sound and I, therefore, hold that the plaintiff became entitled to half share of Sri Gauri Shanker under the will and to th share that devolved upon his father on the death of his grand-father. 10. In the result, the appeal is partly allowed, the judgment and decree of the appellate court are set aside and that of the trial court are restored, The parties will bear their own costs.