JUDGMENT 1. - Heard Mr. R.K. Thanvi, learned counsel for the appellant (original plaintiff) and Mr. Gopal Raj Singhvi, learned counsel for respondent (original defendant). 2. This first appeal is filed by the original plaintiff against the judgment and decree dated 2.2.2001 passed by Additional District Judge No. 1, Jodhpur in Civil Original Suit No. 79 of 1996, Man Prakash v. Om Prakash , whereby the suit filed by the present appellant inter-alia for recovery of possession & damages came to be dismissed by the Judgment and decree passed by the trial Court. 3. The present appellant (hereinafter referred to as "plaintiff") filed Regular Civil Suit No. 79/1996 against the respondent (hereinafter referred to as "defendant") in the Court of District Judge stating therein that a patta-sud property of his grand-father late Shri Madanlal, exists in front of M.I. Restaurant on a part of Plot No. 826, the boundaries of which are mentioned in the plaint, which was given to him under a Will executed and registered on 27.4.1983 making arrangement in the Will that till his death the property shall remain in the ownership of his grand-father and after his death the plaintiff will be its owner. It was further averred in the plaint that during the lifetime of his grand-father Shri Madanlal, with his consent and permission the defendant, who is the real uncle of plaintiff, was in possession of the property. Shri Madanlal expired on 29.11.1985 and after that plaintiff and his father informed the defendant about the ownership of the plaintiff of the said property though Shri Madanlal during his lifetime had informed the defendant that he had given the said property to the plaintiff under a Will. The plaintiff, as such asked the defendant to vacate the premises and the defendant assured that he would vacate the premises after making arrangements somewhere else but even after long; lapse of time the defendant did not do so, then the plaintiff had to serve a notice on the defendant through his Advocate by registered AD post on 26.10.1988 for handing e' er the possession of the property within a period of seven dyes of its receipt with damages () Rs. 200/- per month claiming himself to be the owner of the suit property. 200/- per month claiming himself to be the owner of the suit property. It is averred that the said notice was received by the defendant but he did not vacate the premises and replied to the notice through his advocate even then in view of the relation between them and in order to avoid litigation he tried to persuade him but that bore no fruit and as he knew it well that the defendant would not handover the possession, he was left with no option but to file the suit. He prayed for an order for handing over the possession of the suit property to him alongwith damages C) 200 per month and expenses of litigation. 4. The said suit was filed in the District Court on 16.11.1996 and was transferred to the Court of Additional District Judge No. 1, Jodhpur for hearing and disposal. On 19.11.1996 summons were issued to the defendant. 5. The plaintiff also filed better particulars before the learned trial Court and stated that by the said very same Will one part of the property at plot No. 826 was willed to the plaintiff and the other part in favour of his brother Govind Prakash and there was no separate Will executed in favour of Govind Prakash. It was said that the said Will was registered in the office of Sub Registrar, Jodhpur and the possession of the defendant on the property was on oral consent of late Shri Madanlal and the Will at Page 4 mentioned that the defendant, the real son of Late Mandanlal, would have to vacate the premises. 6. The defendant in his written statement stated that the said plot No. 826 and the building constructed thereon was purchased by his father Late Madanlal through a registered sale-deed from Kalyandas on 20.6.1942 and since then he and his father were the joint owner of the said property and the defendant is in possession and occupation of the suit property with his family as owner. The defendant denied any Will having been executed by his father and stated that Late Madanlal before his death remained ill for a period of about three years and did not execute any such Will on 27.4.1983 nor the said Will bears h:s signatures. The defendant denied any Will having been executed by his father and stated that Late Madanlal before his death remained ill for a period of about three years and did not execute any such Will on 27.4.1983 nor the said Will bears h:s signatures. It was also stated that the alleged Will is a forged document and as the property was a joint property Late Madanlal had no right to execute a Will in respect of whole of the property. It was stated that it seemed that the plaintiff and his father got prepared a forged document through their Advocate and registered it through the same advocate who has filed the suit. It was also stated that Late Madanlal got constructed a new house on half portion of plot No. 826 in which presently plaintiff, his father Premprakash and other family members reside since the time Mandanlal was alive and in rest half portion of Plot No. 826 the defendant alongwith his family members is in possession as owner since the lifetime of late Madanlal. The defendant denied to have been informed about the Will dated 27.4.1983 after the death of Late Madanlal or being shown to him and it was stated that the receipt of the notice from plaintiff astonished him and became perplexed, to which he replied thereafter on 1.1.1988 demanding a copy of the will but same was not supplied to him. It was further stated that the defendant has seen the alleged Will only after the filing of the suit in the Court and stated that he was never asked to vacate the premises t.,%, tile plaintiff rather he was in possession of the premises since the time of its purchase as its owner. It was stated that the defendant was not his 'Chacha' but 'Bada Pita' and denied the claim of the plaintiff to get Rs. 200/- per month. The learned trial Court, on the pleadings of the parties, framed following issues: (i) Whether the suit property came to the plaintiff on the basis of a written and executed registered Will dated 27.4.1984 (sic.27.4.1983) by his grandfather Madanlal during his lifetime and hence the plaintiff is the legal owner of the property? (ii) Whether after lifetime of Late Shri Madanlal, the possession of the defendants on disputed property is illegal and is of nature of a trespasser? (ii) Whether after lifetime of Late Shri Madanlal, the possession of the defendants on disputed property is illegal and is of nature of a trespasser? (iii) Whether the plaintiff is entitled to receive mesne profit @ Rs. 200/- per month from defendant from the date of filing of the suit to the date of receipt of possession of the disputed property? (iv) Whether the disputed property was the joint property of defendant and Late Shri Madanlal and as such Late Shri Madanlal had no right to execute Will in relation to the property? (v) Whether the plaintiff by under valuing the suit has paid less Court fees? (vi) Whether the suit is barred by limitation? (vii) Whether the plaintiff has not obtained probate of the Will and for that reason the Will dated 22.4.1983 is not admissible in evidence and the suit of the plaintiff is liable to be dismissed? (viii) Whether the defendant is entitled to receive special costs Rs. 15,000? (viii) Relief? 7. Plaintiff Manprakash in support of his case examined himself as PW-1 and also PW-2 Narapt Singh and PW-3 Rarnkishore as the attesting witnesses of the Will. The defendant examined DW-1 Omprakash, DW-2 Ramdutt Gehlot and DW-3 Bhawani Singh. The parties also tendered some documents in evidence. The learned trial Court after hearing both side, passed judgment and decree dated 2.2.2001 in Civil Regular Suit No. 79/1996. 8. The trial Court has disposed of Issue No. 1 & 4 together. Both these Issues have been decided against the plaintiff and in favour of defendant. Issue No. 2 & 3 have also been decided against plaintiff but Issue No. 5, 7 & 8 have been decided against the defendants. On the basis of the findings recorded, the learned trial Court has dismissed the suit of plaintiff. 9. I have heard learned counsel for the parties and perused the material available on record. 10. It has been contended by the learned counsel for the appellant that the trial Court has not properly appreciated the matter. According to him, since the property was not ancestral and the Will being genuine, Late Shri Madanlal had all the rights to make the Will in relation to the property purchased by him. 10. It has been contended by the learned counsel for the appellant that the trial Court has not properly appreciated the matter. According to him, since the property was not ancestral and the Will being genuine, Late Shri Madanlal had all the rights to make the Will in relation to the property purchased by him. It has also been contended that the Will is a registered document, which has sufficiently been proved, therefore, on the basis of the Will plaintiff and his brother have the ownership right on the property. It has also been contended that the trial Court has erred in deciding Issue No. 4 in favour of defendant and has misread the evidence led by the plaintiff and findings on issue No. 1 are required to be recorded in favour of the plaintiff. The learned counsel for the appellant in support of his submission has placed reliance on certain cases and submitted that in AIR 1977 Punjab & Haryana 123, Smt. Rajeshwari Rani v. Nirja Guleri it has been observed that in the matters of Will the attesting witnesses are not expected to meticulous in the minutes details of the Will and further it is not necessary to produce the Oath Commissioner and the drafter of the Will. He also submitted that in AIR 1983 Orissa 24 it has been held that absence of statement from the attesting witness that he had signed in presence of execution is immaterial and in AIR 1993 Orissa 218, Bishnupriya Mohapatra v. Bata Krushna Mohapatra it has been held that non-production of Will for long period could not be held to be suspicious. 11. On the other hand, the learned counsel for the respondent-defendant submitted that the property was purchased as early as in 1942 from one Kalyandas s/o Devji for the consideration stated in Ex.P-6 i.e. Sale Deed and the Patta thereof Ex.2A was issued in joint names of Madanlal and defendant Omprakash. The submission of the learned counsel is that in view of these two documents, it appears that the ownership in relation to the property in question passed on in favour of defendant in the year 1942. The submission of the learned counsel is that in view of these two documents, it appears that the ownership in relation to the property in question passed on in favour of defendant in the year 1942. The learned counsel submits further that there is no evidence brought on record to show that the property after having come in possession, ownership and title of defendant Omprakash under the joint ownership, Madanlal had any right in law to dispose of the entire property even by a Will. According to him, Madanlal could have disposed of the property by sale or otherwise only upto the extent of his share. It has also been submitted that after about 40 years of the ownership of the defendant in respect of his share in the property, the Will Ex.1 is said to have been executed and once the title passed in the defendant in the year 1942 thereafter the defendant had all the rights to dispose it off upto his share to anybody at any point of time. It is submitted that at the time of purchase of the property, the defendant was only about 9 years of age and Prem Prakash had not even born. The substance of argument of the learned counsel is that the suit has correctly been dismissed by the learned trial Court. Learned counsel in support of his submissions relied on the cases reported in AIR 1990 SC 396 , Kalyan Singh v. Chhoti , LRL 1991(1) 203, Smt. Devi Bai & Ors. v. Smt. Godawari & Anr. , and AIR 1995 SC 2086 , V.S. Mane v. R.V. Ganeshkar to support that the Will was extremely suspicious. 12. I have considered the submissions made before me. There is no dispute about the principles laid down on the point as to the manner in which a Will can be said to be proved in the Court cited by the learned counsel at Bar. 13. After hearing learned counsel for the parties at great length and carefully examining the entire evidence and the material available on record, the points, which require consideration, are: (i) Whether the will produced in the Court is a genuine document? (ii) Whether as per the Will the entire property is liable to devolve on plaintiff and his brother Govind Prasad? After hearing learned counsel for the parties at great length and carefully examining the entire evidence and the material available on record, the points, which require consideration, are: (i) Whether the will produced in the Court is a genuine document? (ii) Whether as per the Will the entire property is liable to devolve on plaintiff and his brother Govind Prasad? (iii) What is the effect of the joint ownership in the property of defendant with Madanlal in presence of the Will executed? (iv) Whether the suit filed was liable to be decreed? Point No. 1 14. It is to be seen that in the statement of the plaintiff, who has produced himself in evidence as PW-1, it has come that his grandfather executed a registered Will which bears signatures of attesting witnesses namely Narpat Singh and Ram Kishore. He has proved Will I;x.P-1. A lengthy cross-examination has been done from this witness but regarding execution of the Will by the Grandfather the plaintiff could not be dislodged. PW-2 Narpat Singh & PW-3 Ramkishore, who are the attesting witnesses have stated in their statements that they have attested the Will prepared by late Madanlal. Narpat Singh has stated that he had attested the Will on asking by Madanlal. 15. The learned counsel for the respondent argued that infact the attestation has not been done as per the provisions of Section 63 of the Evidence Act because one of the witnesses has stated that he attested the Will at his own. The learned counsel has pointed out certain omissions in the statements of PW-2 & 3 but I do not find any substance in the contention of the learned counsel firstly because the Will is registered one and secondly the plaintiff and these witnesses have clearly proved the factum of execution of Will and as such the minor discrepancies pointed out in their lengthy cross examinations are of no significance. 16. In view of above discussion, the answer to point No. 1 is that the Will produced in the Court is a genuine document.Point No. 2 & 3: 17. Point No. 2 & 3 being inter-connected, same are being decided together. 18. It is to be seen now as to what is the effect of the Will and whether on the basis of Will the entire property will devolve on the plaintiff and his brother? Point No. 2 & 3 being inter-connected, same are being decided together. 18. It is to be seen now as to what is the effect of the Will and whether on the basis of Will the entire property will devolve on the plaintiff and his brother? The plaintiff and the witnesses produced on his behalf have stated about the execution of the Will in the year 1983 and plaintiff has also stated that a notice of the Will was given to the defendant in the year 1988 to which a reply was also filed by the defendant, which is not in dispute. The submission of the learned counsel has been that even in the lifetime of Madanlal it was intimated to the defendant that a Will has been executed. It has also been stated by the plaintiff that after the death of Madanlal the defendant was asked to vacate the premises but as he made request to accommodate him and he was in search of another accommodation, nothing was done for quite some time and ultimately the suit was filed in the year 1996. The evidence which has been produced by the defendant in this behalf is that infact the Will was a forged document and even if the Will is there then also Madanlal had no right to make Will in relation to the entire property, and he could at best dispose off his share in the property. The defendant and his witnesses have also stated that from the lifetime of Madanlal, the defendant was living in half of the property and also constructed a house to live in and on the other portion of the land the construction was made by Madanlal in which plaintiff and his father were living. In the evidence it has been staled by the witnesses also that since the property was joint as such Madanlal had no right to make the Will in relation to the entire property. 19. After carefully examining the contentions of the learned counsel and the evidence available on record, I find that in the instant case it is an admitted fact that the Patta was issued in favour of Madanlal and the defendant as early as in 1943 and this document clearly states the ownership of defendant Om prakash. Ex.6, the sale deed also states about the ownership of the defendant in the property with Late Madanlal. Ex.6, the sale deed also states about the ownership of the defendant in the property with Late Madanlal. In view of these two documents, it is well established that when the suit property was purchased, it was purchased in the joint name of Madanlal and Omprakash and by insertion of defendant's name the defendant became owner of the suit land. The title also came to he vested in him and these documents are in existence continuously. The defendant thereafter became major and in it only after about 42 years from vesting of title in him a Will has been made by which the entire property has been sought to be shifted in the name of the plaintiff and his brother. Plaintiff and his brother are sons of Prem Prakash, who is the real brother of defendant Om Prakash. Once the title vested in the defendant for half of the property, then only on saying that the property was self earned property of Madanlal and lie had all the rights to keep away Om Prakash defendant from the property is not plausible. It is not known as to whether the money spent for the purchase of the property was entirely of Madanlal or it was purchased out of some property of joint family. Be as it may, the important aspect of the matter is that once in very clear and categorical terms the name of defendant was inserted in the sale-deed as well as Patta without there being any condition contrary to dislodge the defendant from the ownership, then in my view Madanlal had the right to make Will only in relation to his share. Once the title is vested in favour of a person then he becomes entitled to deal the property in the manner he so likes. I lad the defendant chosen on earlier occasion to dispose off his share in the property then whether that disposal of his share would have been illegal and would not have created right in favour of other person? If the answer is in affirmative then the only conclusion, which requires to be drawn taking into consideration the Will to be a genuine document is that even then Madanlal could not have willed the entire property. 20. If the answer is in affirmative then the only conclusion, which requires to be drawn taking into consideration the Will to be a genuine document is that even then Madanlal could not have willed the entire property. 20. In view of above discussion, the answer to Point No. 2 & 3 is that the Will being genuine had given right to Late Shri Madanlal only to part with his share r. the property and not the entire property by virtue of Ex.2 & 6.Point No. 4: 21. In view of findings recorded on Point No. 1 & 3, the learned trial Court has correctly dismissed the suit. 22. In view of foregoing discussions, I do not find that the learned trial Court has misread the evidence or the findings recorded by the trial Court can be said to be erroneous. There appears nothing illegal in the appreciation of evidence made by the learned trial Court. 23. In view of what has been stated hereinabove, the appeal being devoid of merit, deserves to be dismissed and is hereby dismissed.Appeal dismissed. *******