JUDGMENT A.L. VAIDYA, J.—The present respondents/their predecessors filed a suit for possession of vacant site ABCDEF measuring 497 square feet as described in the plaint. The suit was also filed for declaration that the defendants had no right to close the entrance at point XY to the land in dispute owned and possessed by the plaintiffs and the space around it inclusion of Kholas shown green in the site plan, which the plaintiffs have acquired as an easement of necessity, with a consequential relief that the gate at point XY as shown in the site plan, be removed. 2. The case of the plaintiffs, as pleaded, had been that the abadi, houses and Kholas of houses owned and possessed by the plaintiffs were situated in Mohalla Rampuri in Nurpur, as shown in the site plan attached with the plaint. According to plaintiffs, they generally remained out due to their professional engagements and some of them have purchased lands separately and built their abadi at different places separately. Defendants 1 and 2 who are closely related to each other, after conniving with defendants 3 and 4, got a false sale deed executed from defendants 3 and 4 in favour of defendant No. 2 on 29.3.1974, regarding the land owned and possessed by the plaintiffs described as ABCDEF measuring 497 square feet shown by red line in the site plan attached with the plaint. The plaintiffs further case has been that on the basis of the said sale deed, defendants 1 and 2 took forcible possession of the suit land which was never owned and possessed by defendants 3 and 4, nor they had any right to sell the same. According to plaintiffs, defendant No. 1, without any right, fixed up a temporary Fatak at point XY as shown in the plan attached, in March 1974, even though the plaintiffs had been using this passage from the time of their fore-fathers for coming and going to their abadi, as there was no other way for coming and going to the plaintiffs abadi and the plaintiffs as such, had a right to use the same by way of easement of necessity and the defendants had no right whatsoever to the passage in dispute. According to plaintiffs, in August 1974, when they came to know of the unauthorised and unlawful act of the defendants, the plaintiffs complained to Sub-Divisional Magistrate, Nurpur, who visited the spot and found the matter of a civil nature and directed the plaintiffs to get the matter settled in a Civil Court. Hence the present suit was filed. 3. The defendants contested the suit. It was denied by the defendants that the plaintiffs were the owners of the disputed property. The forcible dispossession, as claimed by the plaintiffs, was also denied. According to defendants, the disputed land was earlier owned by defendants 3 and 4, who had lawfully sold it in favour of defendant No. 2 through a registered sale deed dated 29.3.1974. Defendant No. 1 was stated to be an agent of defendant No. 2 and as such, looking after the property. It was pleaded that the Fatak was existing there for more than 20 years and this gate was got fixed by defendant No. 1 with the consent of defendants 3 and 4 and sons of Chet Ram. This defendant No. 1 was also stated to have purchased the land of Chet Ram in the year 1971. The alleged easementary rights claimed by the plaintiffs were also denied. Various preliminary objections were also raised in the written statement. 4. Parties were put to trial on the following issues: 1. Whether the suit is within time ? OPR 2. Whether the plaintiffs have no locus-standi io sue as alleged? OPD. 3. Whether the plaintiffs are estopped from filing the suit by their act and conduct? OPD. 4. Whether the suit is liable to be dismissed for non-joinder of necessary parties as alleged? OPD. 5. Whether the suit is correctly valued for the purposes of court fees and jurisdiction? OPR 6. Whether the plaintiffs are the owners of the property as described in head note (Part-A) of* the plaint? OPP 7. If issue No. 6 is proved whether the defendants have become owners of this property by adverse possession as alleged? OPD. 8. Whether the plaintiffs have acquired the easement of necessity with respect to the property described in Part (B) of the plaint as alleged? OPP 8-A. Whether the plaintiffs had been forcibly dispossessed of the suit land as alleged? OPP 9. Relief. 5. OPD. 8. Whether the plaintiffs have acquired the easement of necessity with respect to the property described in Part (B) of the plaint as alleged? OPP 8-A. Whether the plaintiffs had been forcibly dispossessed of the suit land as alleged? OPP 9. Relief. 5. The trial Court came to the conclusion that plaintiffs were the owners of the disputed land and they were dispossessed unlawfully by defendant No. 1 in the year 1974. Plaintiffs alleged easementary rights were also favourably considered. Defendants plea that they had become owners by way of adverse possession, was not accepted. The suit for possession, as such, was decreed and it was also declared that plaintiffs were having the right of passage for approaching their abadi land through the passage shown by letters XY. 6. The aforesaid judgment and decree were assailed in an appeal before the first appellate Court, where also the judgment and decree passed by the trial Court were maintained. 7. Through the present second Appeal, the judgments and decrees passed by the two courts below have been assailed on various pleas. 8. Learned Counsel for the parties have been heard and the entire record has been scrutinised. 9. The main point stressed before this Court has been pertaining to the ownership of the property in dispute claimed by the plaintiffs. In the plaint, simple averment made in this particular behalf, has been that plaintiffs were the owners of the disputed property which plea has been very specifically denied by the defendants. So, in order to have a decree as prayed for by the plaintiffs, they have to establish their title over the suit property. There is nothing in the plaint as to how the title was acquired, though the evidence in this behalf has been led by the plaintiffs and according to that, this property was previously owned by one Parsanno, who had bequeathed the same in favour of Tek Chand, the predecessor of the present plaintiffs. This Will Ex. P-2 was alleged to have been executed on 4.4.1937. This Will was brought on record in the statement of PW-2 Shri Fakir Chand. 10. This Will Ex. P-2 was alleged to have been executed on 4.4.1937. This Will was brought on record in the statement of PW-2 Shri Fakir Chand. 10. Learned Counsel for the appellants submissions can be summarised as under: (a) the plaintiffs have failed to prove themselves to be the owners of the disputed land, inasmuch as the Courts below, at first instance, illegally applied the presumption as envisaged under Section 90 of the Evidence Act so far as the Will Ex. P-2 was concerned. There has been no legally competent evidence to prove this document Ex. P-2 to be the fast valid Will of the testator; and (b) otherwise also, the evidence examined during the trial did not legally connect the property in dispute to be the subject-matter of the Will Ex. P-2. 11. Both the Courts below have held the plaintiffs to be owners of the disputed property on the basis of the Will Ex. P-2 and have also come to the conclusion that the identity of the land with the Will has been proved. 12. So, at the very first instance, the validity attached to this Ex. P-2, has to be examined. It has to be found out whether any presumption under Section 90 of the Indian Evidence Act could be made available for appreciating this document Ex. P-2 and it has to be seen whether this document stood legally proved to have been validly executed. 13. As pointed out above, this Will Ex. P-2 has not been pleaded by the plaintiffs in their plaint. There is nothing in the averments made by the plaintiffs that on the basis of this Will alleged to have been executed by Parsanno in April 1937 in favour of Tek Chand, the plaintiffs became owners of the same. This document was filed before the trial Court, as per record, on 15.9.1978. The suit was filed in March 1975 and at that time, this document was not mentioned in the list of reliance. Anyway, the fact remains that this document was never pleaded nor relied upon at the time of the filing of the suit, but was brought on record in the year 1978, as referred to above and was exhibited in June 1982 when the statement of PW-2 Shri Fakir Chand was recorded. Anyway, the fact remains that this document was never pleaded nor relied upon at the time of the filing of the suit, but was brought on record in the year 1978, as referred to above and was exhibited in June 1982 when the statement of PW-2 Shri Fakir Chand was recorded. At this stage, with the background of aforesaid facts, Section 90 of the Indian Evidence Act can safely be referred, which runs as under: "S. 90, Presumption as to documents thirty years old.— Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be executed and attested. Explanation.—Documents are said to be in proper custody if they are in the place in which and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This explanation applied also to Section 81." 14. The aforsaid provision takes away, with the strict rules of proof, which are in force in the case of private document, by giving rise to a presumption of the genuineness with regard to documents reaching a certain age. Thus, in case a private document, not less than 30 years old, is produced from private custody and is on its face, free from suspicion, the Court may presume that the document has been signed or written by the person whose signatures it bears or in whose handwriting it purports to be and that it has been duly attested and executed. 15. At this stage, some case law cited on behalf of the parties can safely be referred. In AIR 1929 Lahore 78, Abdul Ghani v. Faqir Muhammad and others, it has been held as under: "If a document purporting to be 30 years old is not duly tendered, proved or exhibited Section 90 cannot cure the defect. 15. At this stage, some case law cited on behalf of the parties can safely be referred. In AIR 1929 Lahore 78, Abdul Ghani v. Faqir Muhammad and others, it has been held as under: "If a document purporting to be 30 years old is not duly tendered, proved or exhibited Section 90 cannot cure the defect. That section only gives discretion to courts to dispense with proof as to the execution of a document. It raises no presumption whatever as regards the accuracy of the document and cannot be used so as to dispense with formal proof of the contents of the document." 16. In AIR 1967 Bom 382, Rangu Vithoba and others v. Rambha Dina and another, the following observations are important to be noted: "In a case based upon a Will, the propounder or the plaintiff must plead that the document was properly executed and duly attested and was the last Will of the testator. He cannot say that the defendants had not denied those facts. The question of presumption under Section 90 would arise only with respect to a case set up by the plaintiff and not with respect to a case which was never pleaded by the plaintiff Where the plaintiff has not pleaded that the Will was duly attested, there will be no question of presuming attestation under Section 90, Evidence Act Assuming that the presumption under Section 90 could be made and the valid attestation of the Will could be upheld though not pleaded by the plaintiff, the presumption Will not extend to the Will being the last Will of the testator. The mere fact that it was a registered document would not contra-indicate its cancellation at a subsequent date of the making of another Wi1 at a later date, particularly when the testator lived for more than thirty years after the Will." 17. In Al R 1977 AP 301, Pinnika Lakshmaiah v. Pinnika Venkateshwarlu and others, the Division Bench of that Court has tried to interpret the words "purporting or proved to be thirty years old", as used in Section 90 of the Act. The following observations of their Lordships are very much relevant and are reproduced hereunder: "The words "purporting" and proved must be read in a sequence. The following observations of their Lordships are very much relevant and are reproduced hereunder: "The words "purporting" and proved must be read in a sequence. The section cannot be in one breath insist on proof of the age of the document and in another breath rest content with mere appearance. All the presumptions under Section 90 would arise only if the document is proved to be 30 years old or if purports to be 30 years old. In order to show that a document purports to be 30 years old merely referring to the date is not sufficient to come within that part of that section. There must be some evidence to show that the document is 30 years old. A clear proof that it is 30 years old may not be necessary in order to bring it within the scope of purporting. At least a prima facie case must be made out that this document is 30 years old. Otherwise, the Legislature would not have put purporting along with the word proved. Moreover if that is not the true meaning and import of the word purporting, it would lead to startling results. Anybody by putting an old date could claim all the presumptions which Section 90 would raise." 18. In this very case law, it has been held that in any case, the presumption, even if one is permitted to be raised in favour of a 30 years old document, is only rebuttable one. 19. In AIR 1988 Cal 196, Ajit Kumar Maulik v. Mukunda Lal Maulik and others, their Lordships of the Division Bench made the following observations: "Section 90 of the Evidence Act is founded on necessity and convenience. It is extremely difficult and sometimes impossible to prove the hand-writing or signature or execution of ancient documents after the lapse of many years. When the signature of the testarix in the Will are not denied in evidence and there is no evidence that the signatures were procured on any blank paper, there is no reason why the presumption permitted by Section 90 of the Evidence Act about due execution and attestation of the Will should not be drawn. However, the presumption under Section 90 of the Evidence Act is one of due execution and attestation as well as of testamentary capacity of the testator executing a Will. However, the presumption under Section 90 of the Evidence Act is one of due execution and attestation as well as of testamentary capacity of the testator executing a Will. This presumption does not extend to the truth of the contents of the Will." 20. In AIR 1992 Kant 282, Kempamma v. Kalamma and others, it has been held as under: "Where the propounder of a Will excepting propounding the existence of a Will executed thirty years before did not make any averments in her pleadings that the Will was acted upon after the death of the testator and that he was in sound condition of mind at the time of execution and that the Will was duly attested and it was the last Will and testament of the testator the presumptions available under Section 90 could not be extended to a Will even if it was a registered Will." 21. Thus, on the basis of the principles laid down in the aforesaid citations, the plaintiffs were required to have pleaded the execution of this Will Ex. P-2 in favour of Shri Tek Chand by the testator and apart from that, the plaintiffs were required to prove the document to be 30 years old. 22. In the present case, there has not been any pleading with respect to the execution of this Will by Smt. Parsanno in favour of Shri Tek Chand, the predecessor of the present plaintiffs. The document is not a registered document. There is practically no legally competent evidence examined during the trial of the suit with respect to the age of the document except the date mentioned on this document Ex. P-2. 23. It has been contended on behalf of the plaintiffs that even if the presumption under Section 90 of the Evidence Act is not available to this document, this Ex. P-2, otherwise has been legally proved on record through the statement of PW-2 independently. 24. So far as the presumption under Section 90 of the Indian Evidence Act is concerned, it cannot be so made available to the aforesaid document Ex. P-2 on the ground that this document has neither been pleaded nor the age of the same has been proved in accordance with law. It may be pointed out here that one of the plaintiff Tara Chand was examined during the trial of the suit. P-2 on the ground that this document has neither been pleaded nor the age of the same has been proved in accordance with law. It may be pointed out here that one of the plaintiff Tara Chand was examined during the trial of the suit. He simply stated that his father Shri Tek Chand was earlier the owner of the suit property. He has not stated even a single word that his father inherited this property on the basis of Will Ex. P-2. He did not state as to when the alleged Will was executed. He has admitted that he did not mention in the plaint as to how his father acquired this property either by way of Will or otherwise. He has stated that the description of the property and its diamension has not been mentioned in the Will. Thus, the statement of one of the plaintiffs, is silent in describing the alleged Will and its execution in favour of his father 25. PW-2 is Shri Fakir Chand who stated that Tek Chand inherited this property through a Will. He further added that he knew Laia Bali Ram, Petition Writer, who was dead This witness also stated that he could identify the hand-writing of the said petition writer. He further added that Ex. P-. 2 was in the hand-writing of the said petition writer. According to this witness, the marginal witnesses were dead and Parsanno, the testator was also dead. There is nothing in the statement of this witness as to how he could identify the signatures of the petition writer This witness has not stated regarding the signatures of the marginal witnesses. According to him, those were dead. 26. It may not be out of place to mention here that in order to prove the execution of this Will Ex. P2, no attempt has been made on behalf of the plaintiffs to identify and prove the signatures of the scribe and other marginal witnesses through the persons who were conversant with the handwriting and signatures of the scribe and marginal witnesses who were alleged to be dead. No attempt has been made to ask for the Register of the petition writer from his heirs, so that the entry in the Register could prove the date of the execution of the said document. The Register could not be available also, but no attempt, in this behalf, has been made. No attempt has been made to ask for the Register of the petition writer from his heirs, so that the entry in the Register could prove the date of the execution of the said document. The Register could not be available also, but no attempt, in this behalf, has been made. Similarly, no attempt has been made to prove the signatures of the marginal witnesses. No attempt has been made to prove the thumb-impression of the testator Thus, this PW-2 will not be of any help to the case of the plaintiffs to prove the valid execution of this document Ex, P-2, more so, the age of this document in order to bring the same within the ambit of Section 90 of the Indian Evidence Act. 27. Another circumstance which has been brought to the notice of this Court by the learned Counsel for the appellants has been pertaining to the age of Smt. Parsanno Devi, the testator In Ex. P-2, her age is mentioned as 60 years. Ex. PW-3/G is the entry of Death Register pertaining to Smt. Parsanno, the testator, who was recorded to have died in January 1945 at the age of 93. That means, in the year 1937 when this Ex. P-2 was alleged to have been executed, the age of Parsanno could be about 85 years, in case the entry in Ex. PW-3/G has been correctly recorded. Otherwise, this aspect of the matter may not be of so importance in case this Ex. P-2 is legally proved to be 30 years old. 28. Thus, this is a case where plaintiffs, due to their default, have not been able to bring this document Ex. P-2 within the scope of Section 90 of the Indian Evidence Act or to prove the valid execution of this Will Ex. P-2 in favour of Shri Tek Chand by Smt Parsanno Devi. There is no doubt that some unsuccessful attempt has been made on behalf of the plaintiffs before this Court to amend the plaint in order to plead the execution of the alleged Will by Parsanno Devi in favour of Shri Tek Chand on 4.4.1987. This prayer of amendment has been disallowed on the sole ground of delay, which did not reflect the bona fides on the part of the plaintiffs, especially when they knew about the Will as far back as in the year 1978 or even prior thereto. This prayer of amendment has been disallowed on the sole ground of delay, which did not reflect the bona fides on the part of the plaintiffs, especially when they knew about the Will as far back as in the year 1978 or even prior thereto. 29. The two Courts below fell into an error in bringing this document under Section 90 of the Indian Evidence Act and in case this document Ex. P-2 is excluded, there is practically no legally competent evidence to connect the ownership of the plaintiffs with the disputed property, in case the identity of the property in dispute is presumed to have been connected with the subject-matter of the Will. The Courts below: as such, fell into an error in this context to declare the plaintiffs to be the owners of the property in dispute on the basis of this Ex. P-2, which finding, though concurrent, has to be interfered with. 30. The right of easement claimed and granted by the two Courts below cannot be held in favour of the plaintiffs, inasmuch as the plaintiffs have not been found to be owners of the disputed property as discussed above for the benefit of which the alleged right of easement has been claimed. 31. No other point has been stressed. 32. In view of the foregoing reasons,, the present appeal succeeds and as a consequence thereof, the judgments and decrees passed by the two courts below, are set aside and accordingly, the suit preferred by the plaintiffs, is dismissed. Parties are, however, left to bear their own costs throughout. Appeal allowed.