ORDER 1. The appellant-defendant, being aggrieved by the judgment and decree dated 22.8.2007 passed by the Additional District Judge, Waraseoni in Civil Appeal No.25-N04 affirming the judgment and decree dated 25.9.2004 passed by Civil Judge Class I Waraseoni in Civil Original Suit No.33-A/04, decreeing the suit of the respondent No.1-plaintiff for declaration, partition and separate possession with respect of the disputed agricultural land, has filed this appeal. 2. The facts giving rise to this appeal in short are that the plaintiff-respondent No.1 herein filed the aforesaid suit against the appellant and other respondents contending that her grandfather Raghunath had two sons, namely, Bhauraj and Bhoomraj (appellant herein). Bhauraj died before 12 years. Bhauraj had solemnized marriage with Sagun Bai and out of such wedlock she was born. When she was two years of the age, her mother Sagun Bai, due to mental retarded condition of Bhauraj, leaving her with him, left the matrimonial home and got remarried with one Laxman Gadewal. Bhauraj and Bhoomraj were residing jointly with the parents and their business and agricultural land was also joint. As such, no partition took place between them. As per further averments of the plaint, her grandfather Raghunath had 2.400 hectares while her grandmother Lalta Bai had 1.156 hectares of agricultural land recorded in their name in village Kherlanji. Besides this, they also had two houses with "Hatabadi", out of which, one house consisting two rooms was situated on Abadi land while the other one was situated in village Khari. On demise of said Raghunath, his 2.400 hectares of land, was inherited by Bhauraj along with Lalta Bai and Bhoomraj jointly. Thereafter, on demise of her father Bhauraj, she inherited his share. On demise of Lalta Bai, her 1.156 hectares of land, was inherited jointly by the appellant and the plaintiff-respondent No.1. In such premises they being joint owners of the aforesaid property are having the entitlement of equal share in it. As per further averments of the plaint, at the time of death of her grandfather Raghunath and grandmother Lalta Bai, she being minor, was residing with the appellant and, therefore, the property of her share, was also looked after by the appellant. Although, in the year 1996, after getting married she went to matrimonial home to village Panjara but the property of her share was looked after by the appellant on her behalf. Although, in the year 1996, after getting married she went to matrimonial home to village Panjara but the property of her share was looked after by the appellant on her behalf. Subsequent to it, on the land bearing S.No.372/13,372/14 and 372/15 admeasuring 0.530 hectares, the appellant got mutated his own name along with the name of respondent No.1 in the revenue records while, the remaining land was got mutated by the appellant exclusively in his name in the Record of Rights. In the year 1997, she was told by the appellant that some debts, taken at the time of her marriage, are to be paid and as soon as such debts are paid, he will handover her share of such property by carrying out the partition. Accordingly, the appellant was cultivating the land on sharing basis. Subsequently, the appellant declined to give her share and started quarreling with her, on which, a complaint was made to the police. The appellant had claimed himself to be the exclusive owner of the aforesaid property on the basis of some forged and fabricated Will, as alleged, executed by said Raghunath in his favour. Apart from the aforesaid property some averments regarding other movables and ornaments are also made. With these averments, the suit for declaration and partition for half of the share of the aforesaid property with separate possession, was filed. 3. In the written statement of the appellant-defendant No.1, by admitting the relationship of the parties and identity of the disputed property, the other averments are denied. In addition, it is stated that, Bhauraj being elder son of Raghunath, solemnized marriage with Sagun Bai. Bhauraj was mentally retarded person while Sagun Bai, the mother of respondent No.1 was a woman of suspicious character who gave birth to Kiran Bai (respondent No.1 herein) within 6-7 months from the date of marriage. It means mother of respondent No.1 conceived pregnancy before solemnizing marriage with Bhauraj. Accordingly, respondent No.1 could not be deemed to be the child of Bhauraj. It is further stated that keeping in view that existence of Bhauraj family should continue, said Raghunath kept respondent No.1 in his family and also treated her to be daughter of said Bhauraj, and not only she was looked after but her marriage was also performed by the appellant. Some other allegations are also made against respondent No.1. It is further stated that keeping in view that existence of Bhauraj family should continue, said Raghunath kept respondent No.1 in his family and also treated her to be daughter of said Bhauraj, and not only she was looked after but her marriage was also performed by the appellant. Some other allegations are also made against respondent No.1. It is further stated that by executing a Will said Raghunath, except one acre land, bequeathed the remaining property to the appellant and in pursuance of it, after death of Raghunath, the name of appellant was mutated in the revenue record. Accordingly, the plaintiff-respondent No.1 did not have any right or title in the disputed property. Her right is also assailed on the ground that after becoming major, she neither challenged the mutation of the appellant nor filed any proceeding in the Court of law in that regard. It is further stated that he is prepared to give some of the land to respondent No.1 which is recorded in their joint name. In any case, she is not entitled to get any partition in the property of his father. With these averments, prayer for dismissal of the suit is made. 4. After framing the issues and recording the evidence, the trial Court had decreed the suit in part for half of the share in the available property except the land which had already been sold earlier. On challenging such judgment and decree of the trial Court by the appellant, the appellate Court, on consideration, by dismissing the appeal, affirmed the judgment and decree of the trial Court, on which, the appellant has come forward to this Court with this appeal. 5. Shri Sanjay Jain, learned counsel for the appellant, after taking me through the pleadings, evidence and the exhibited documents on record said that the Courts below have committed error in holding the respondent No.1 to be the daughter of Bhauraj. He further said that, according to the defence of the appellant, the alleged property was bequeathed to him by his father Raghunath through registered Will dated 5.11.1985 (Ex.D-1) but in the lack of examination of the attesting witnesses of such Will, holding the same to be unproved document, the impugned decree of declaration, partition and separate possession was passed by the trial Court. By referring the application dated 6.9.2004 and some proceedings of the trial Court, he argued that in spite making prayer to extend an opportunity to call and examine the attesting witnesses of the Will, the same was not given and by closing such right of the appellant, the case was decided under wrong premises. Even on raising the aforesaid question in appeal before the subordinate appellate Court, the same was not considered with proper approach and the judgment and decree of the trial Court was affirmed. In such premises, he prayed for admission of this appeal on the proposed substantial questions of law mentioned in para 8 of the appeal memo. He also placed his reliance on some reported decisions. 6. Having heard the counsel at length, I have examined the record carefully and also perused the impugned judgment. As per averment of the plaint, respondent No.1 filed the suit for declaration of her half share in the disputed property with a further prayer for partition and separate possession. The same was opposed by the appellant-defendant No.1 mainly on two grounds. Firstly that respondent No.1 is not the daughter of his brother Bhauraj and secondly that Raghunath, the principal owner of the property by executing a Will dated 5.11.1985 (Ex.D-1) bequeathed the entire property, except some land, to the appellant-defendant No.1 and in such premises, respondent No.1-plaintiff did not have any right to file the aforesaid suit. 7. Taking into consideration the averments of the written statement and the deposition of the appellant-defendant No.1, the plaintiff-respondent No.1 has been held to be the daughter of Bhauraj and such finding is affirmed by the appellate Court. So, firstly in view of admission of the appellant in the written statement and secondly his acceptance in the deposition in this regard, in view of the provision of section 58 of the Evidence Act, the appellant did not have any right to challenge the paternity of the respondent No.1 at this stage. Apart this, the findings of both the Courts below on this question, being based on appreciation of evidence and concurrent finding, the same could not be interfered under section 100 of the CPC as reappreciation of the evidence is not permissible at the stage of second appeal. 8. It is true that appellant-defendant No.1 defended the suit on the basis of alleged registered Will dated 5.11.1985 (Ex.D-1) executed by Raghunath. 8. It is true that appellant-defendant No.1 defended the suit on the basis of alleged registered Will dated 5.11.1985 (Ex.D-1) executed by Raghunath. Such document is also placed on the record. As per trial Court's record, after closing the evidence of the plaintiff-respondent No.1 vide order dated 23.8.2003, the case was fixed for appellant-defendant's evidence on 26.9.2003, on which, some incomplete in-chief of the appellant was recorded and in the lack of original Will, the case was adjourned. Subsequently, some application in this regard was filed. Thereafter, the case was adjourned for various dates and under the administrative order dated 11.3.2004, the case was transferred to some other Court, where the document of the appellant-defendant No.1 was taken on record by imposing cost of Rs.100/- on 13.4.2004 and the case was fixed for evidence on 26.4.2004 with a direction to the appellant-defendant No.1 for producing his witnesses personally or through summons by submitting the process fee. On 26.4.2004, instead to keep present the witnesses, the appellant filed the application for adjournment. The same was considered and allowed as last indulgence with the aforesaid direction and the case was fixed for 14.6.2004. On 14.6.2004, instead to produce the witnesses, the appellant again sought time. The same was given as last indulgence with a further direction to produce the witnesses personally or through summons by submitting the process fee and the case was fixed on 12.7.2004. On 12.7.2004, the remaining in-chief of the appellant was recorded and again the case was adjourned for his cross-examination and examination of the remaining witnesses on 14.7.2004. On 14.7.2004, the cross-examination of the appellant was completed but as he did not produce the remaining witnesses on such day then the case was fixed for 11.8.2004 for examination of the remaining witnesses. On 11.8.2004, instead to produce the witnesses, an application for adjournment was filed, however, the same was considered and allowed by imposing cost ofRs.50/- and the case was fixed for examination of remaining witnesses of the appellant on 1.9.2004. On 1.9.2004, the appellant did not produce his witnesses and filed an application for adjournment, on which, by passing speaking order, the same was dismissed and the case was fixed for final arguments on 6.9.2004. On 6.9.2004 instead to argue the case, an application to examine the witness of the alleged Will was filed. On 1.9.2004, the appellant did not produce his witnesses and filed an application for adjournment, on which, by passing speaking order, the same was dismissed and the case was fixed for final arguments on 6.9.2004. On 6.9.2004 instead to argue the case, an application to examine the witness of the alleged Will was filed. It appears from the averments of such application that even on the date of filing such application, no witness was kept present for examination before the trial Court. Considering all these circumstances, such application was dismissed by the trial Court vide order dated 9.9.2004. It is noted that inspite giving various opportunities, the appellant-defendant No.1, had neither produce the witnesses nor submitted any process fee for calling his witnesses through summons. Besides this, list of witnesses to be examined was also not filed by him on the record. It appears that taking into consideration the factual matrix of the case in which various opportunities to adduce the evidence was given to the appellant, the trial Court decided the case on merits and on appeal, considering the aforesaid factual matrix, the approach of the trial Court on aforesaid question has been affirmed. 9. It is settled proposition of law that the concurrent findings of facts, howsoever erroneous, could not be interfered with under section 100 of the Civil Procedure Code merely on equitable grounds. The same is laid down by the apex Court in the matter of Kondiba Dagadu Kadam v. Savitri Bai Sopan Gurjar [ AIR 1999 SC 2213 ]. 10. So far as argument of the appellant's counsel with respect of the registered Will dated 5.11.1985 (Ex.D-1) was not properly considered by both the Courts in view of the provision of presumption regarding registered document is concerned, it is settled proposition of law that for proving the Will, examination of attesting witnesses is necessary. In the lack of examination of such attesting witnesses, such Will is neither admissible or acted upon to draw any inference in favour of the beneficiary or the propounder of such Will. Such principle is laid down by the apex Court in the matter of Janki Narayan Bhoir v. Narayan Namdeo Kadam [2003(1) MPWN 130= AIR 2003 SC 761 ]. In such premises, mere producing the Will on record or marking exhibits by the appellant himself is not sufficient to hold such document to be bona fide and genuine. Such principle is laid down by the apex Court in the matter of Janki Narayan Bhoir v. Narayan Namdeo Kadam [2003(1) MPWN 130= AIR 2003 SC 761 ]. In such premises, mere producing the Will on record or marking exhibits by the appellant himself is not sufficient to hold such document to be bona fide and genuine. It is also settled law that mere registration of the Will is not guarantee of its genuineness as laid down by this Court in the matter of Bherusingh v. Sunderbai [ 1981(II) MPWN 61 ]. In such premises, the argument of the appellant on this question has neither appealed me nor giving rise to any substantial question of law. 11. So far the case law cited by the appellant-defendant No.1 in the matter of Bashir Ahmed v. Mehmood Hussain Shah [ AIR 1995 SC 1857 ], is concerned, the same was decided taking into consideration that the counsel of the party fell ill in the preceding night and next day, the adjournment was prayed on such ground the same was not granted, on which, by making interference, the case was remitted back to the trial Court for re-examination of the witnesses which is not the situation here. The facts stated in the aforesaid case are distinguishable to the facts of the case at hand, hence in the present circumstances, the same is not helping to the appellant. 12. In view of aforesaid discussion, I have not found any perversity in the impugned judgments giving rise to any question of law requiring any consideration in the matter under section 100 of the CPC. Hence, the appeal being devoid of any merit, deserves to be, and is hereby dismissed at the stage of motion hearing.