JUDGMENT : 1. The present second appeal has been preferred against the judgment and decree dated 26.02.2015 passed by the Additional District Judge No.3, Bikaner in Civil Appeal No.112/2012 whereby the appeal against the judgment and decree dated 21.03.2007 passed by the Additional Civil Judge (Jr. Division) No.2, Bikaner has been dismissed and the judgment of the trial Court decreeing the suit of the plaintiff for possession has been affirmed. 2. The brief facts of the case are as under: 3. The plaintiff Meghraj son of Gordhandas preferred a suit for possession and mesne profits against the defendants with a submission that the residential property in question was purchased by his father Gordhandas in the year 1941 but Gordhandas, just for the satisfaction of his father Balkishan, got the patta of the said property prepared in the name of Balkishan. Subsequently, because of the fact that the property was purchased by Gordhandas only, Balkishan executed a will dated 11.07.1949 in favour of Gordhandas which was registered on 13.07.1949. In the year 1970, vide a registered sale deed dated 13.02.1970, the suit property was sold by Gordhandas to his son Meghraj, the plaintiff and since then he is in possession being the owner of the property. In the year 1975, half of the property was encroached upon by Vishnu Dutt, brother of the plaintiff and father of the defendants. It has been averred in the plaint that possession of Vishnu Dutt Joshi on the suit property was illegal and after his death, that of the defendants is also illegal and the plaintiff is entitled to get back the possession of the property, he being the rightful owner of the same. A prayer for mesne profits qua the user of the property was also made. 4. The case of the defendants had been that the land was purchased by Balkishan only and since the purchase, all his sons remained in possession of the property as coparceners. The property was orally partitioned by Balkishan during his lifetime and in terms of the said oral partition, the disputed property was allotted in favour of Gordhandas. The defendant was in possession of the disputed property since the year 1957 being the son of Gordhandas. Balkishan was not in good health and the will had not been executed by him in a sound state of mind. The defendant was in possession of the disputed property since the year 1957 being the son of Gordhandas. Balkishan was not in good health and the will had not been executed by him in a sound state of mind. Further that, because of the long and uninterrupted possession since the year 1957, the title in favour of Gordhandas, even if any, stood extinguished in view of the adverse possession of the defendants. Further that Gordhandas had no right to sell the property as he was not the exclusive owner but was one of the coparceners. Criminal proceedings under Section 145, Cr.P.C. on total wrong facts were also initiated by the plaintiff against the defendants but the same was also dismissed. 5. The suit as preferred by the plaintiff was partly decreed by the trial court and the defendants were directed to hand over the physical possession of the disputed property to the plaintiff within a period of two months. Appeal against the judgment and decree dated 21.03.2007 preferred by the defendants has also been dismissed vide judgment and decree dated 26.02.2015. 6. Aggrieved against the same the present second appeal has been preferred. 7. The primary ground argued before this Court by counsel for appellants is that the Courts below have erred in relying upon the will dated 11.04.1949 whereas the same could not have been held to be proved, as in terms of Section 68 of the Evidence Act, 1872 it was mandatory for at least one of the attesting witnesses to the said will to have deposed and proved the said document. As the plaintiff himself admitted that one of the attesting witnesses was alive, he ought to have been produced in the witness box and the same having not been done, the will could not have been said to be proved in terms of Section 68 of the Evidence Act. Learned counsel pointed out the specific admission of the plaintiff Meghraj (PW-1) in his statements, recorded in the year 1990 that Lalchand, one of the attesting witnesses to the will was alive at that point of time. Learned counsel pointed out the specific admission of the plaintiff Meghraj (PW-1) in his statements, recorded in the year 1990 that Lalchand, one of the attesting witnesses to the will was alive at that point of time. Therefore, the said witness Lalchand ought to have been produced to prove the document and the same having not been done, the Courts below have erred in law in ignoring the mandatory requirement in terms of Section 68 and in holding the document to be proved taking a presumption in terms of Section 90 of the Evidence Act. 8. Second ground raised by learned counsel for the appellants is that the defendants-appellants were in possession of the property since 1957 and thus, by virtue of principle of adverse possession, the right of the plaintiff, even if any, stood extinguished. 9. The next ground raised before this Court is that a suit for possession simpliciter was not maintainable without a prayer for declaration being sought for. Therefore, the suit of the plaintiff for possession and injunction without any relief for declaration been prayed for, ought to have been dismissed only on this ground. 10. Learned counsel submitted that the factum of the defendants being in possession is even evident from the fact that the criminal proceedings under Section 145, Cr.P.C. initiated by the plaintiff in the year 1975 were decided against him as the Court reached to a specific conclusion that the defendants had not encroached on the property but were in lawful possession of the same. 11. Per contra, learned counsel for the respondents submitted that the provisions of Section 68 of the Evidence Act would not apply in the present matter as the statements of PW.1-Meghraj were recorded in the year 1990 and statements of PW.3-Shiv Prasad Joshi son of Meghraj were recorded in the year 2005 and in his chief examination he specifically stated that none of the attesting witnesses to the will were surviving at that point of time. There has been no cross-examination on that aspect from the said witness. Even in his cross-examination, the witness has not denied the factum of death of the attesting witnesses. Therefore, Section 68 of the Evidence Act would clearly not apply to the present matter. Learned counsel further submitted that it was rather a case of clear admission on behalf of the defendants themselves regarding the execution of the will. Even in his cross-examination, the witness has not denied the factum of death of the attesting witnesses. Therefore, Section 68 of the Evidence Act would clearly not apply to the present matter. Learned counsel further submitted that it was rather a case of clear admission on behalf of the defendants themselves regarding the execution of the will. He referred to the statements of DW.2-Rajendra Das Joshi who specifically admitted that the will had been executed by Balkishan and vide the will, the property in question was bequeathed to Gordhandas. Learned counsel therefore submitted that in view of the specific admission of the defendant witnesses themselves, the learned Courts below rightly presumed the document to be valid in terms of Section 90 of the Evidence Act as the same was a 30 years old document and the writer of the said document as well as the executant and attesting witnesses had all expired. 12. Replying to the plea of adverse possession as averred by learned counsel for the appellants, learned counsel for the respondents submitted that the said plea itself is sufficient to prove that the plaintiff was true owner of the land in dispute because adverse possession can be pleaded only against a true owner. Learned counsel submitted that the appellants cannot blow hot and cold at the same time as in the written statement the defendants pleaded possession of the property by virtue of oral partition done by Gordhandas during his life time and on the other hand, have pleaded adverse possession. If the defendants plead possession on the basis of oral partition, they cannot plead adverse possession. Two contradictory pleadings/stand taken by the defendants are itself sufficient to demolish the case of the defendants. 13. So far as the maintainability of the suit in absence of relief for declaration is concerned, learned counsel submitted that the plaintiff had the title of the land in his favour and therefore, he was not required to pray for any declaration in his favour. A true owner having a title in his favour is not required to get any declaration and it was the specific case of the plaintiff that he is the true owner of the land and the defendants had encroached upon half portion of the land of which the possession was prayed for. 14. None of the counsels relied upon any judgment in support of their contentions. 15. 14. None of the counsels relied upon any judgment in support of their contentions. 15. Heard learned counsel for the parties and perused the material available on record. 16. Before adverting into the first and the primary ground raised by learned counsel for the appellants, it is relevant to note that two other grounds regarding adverse possession and the maintainability of the suit raised by learned counsel for the appellants before this Court during the course of arguments have neither been pleaded in the memo of appeal nor any substantial question of law has been pleaded to have arisen or proposed to be framed. A perusal of the record shows that though issue No.5A had been framed qua the plea of adverse possession and the same had been decided against the defendants, no ground pertaining to issue No.5A has been raised in the present memo of appeal. So far as the ground regarding the maintainability of the suit is concerned, no pleadings qua the same had been made even before the trial court. Therefore, this Court is not inclined to entertain the said two grounds as raised by the learned counsel for the appellants in the present second appeal. 17. Coming on to the primary and sole ground raised in the present second appeal as to whether the presumption drawn by the Courts below under Section 90 of the Indian Evidence Act, 1872 for the proof of the will in question is correct, the question would be whether the plaintiff was even required to prove the will in question. It is clear on record that the will was a registered one and the execution of the same was specifically admitted by the defendants themselves. The defendants in their written statement came up with the case that some apprehension was created in the mind of Gordhandas regarding the oral partition and therefore, he got the will executed in his favour. It has further been pleaded that Balkishan had no right to execute the will in favour of Gordhandas. Meaning thereby, the factum of execution of the will has not been disputed. It is only the authority of the executant which has been disputed. It has further been pleaded that Balkishan had no right to execute the will in favour of Gordhandas. Meaning thereby, the factum of execution of the will has not been disputed. It is only the authority of the executant which has been disputed. The plea as raised by the original defendant in his written statement qua the will is as under: ^^¼2½ ;g fd u0 2 vjthnkok cotg xyr c;kuh Lohdkj ugha gSA fxUuk.kh esa tks QjhdSu ds ewjlku dh tehu gS og okLro esa xksj/kunkl th ds firk us ekS:lh U;wfDy;l ls [kjhnh Fkh tks mudh o muds yM+dks dh dksiklZujh tk;nkn ds :i esa gh ,Dok;j gqbZ o dksiklZujh tk;nkn gh jghA okLro esa xksj/kunkl th ds firkth us dksiklZujh tk;nkn dk ekSf[kd foHkktu djds mDr vkjkth xksj/kunklth ds fgLls esa ,yksV djnh Fkh vkSj rHkh ls xksj/kunkl th bl ekS:lh tk;nkn ds ekfyd o dkfct gks x;s Fks ckn esa yksxksa us muds eu esa cge Mky fn;k Fkk fd Hkfo"; esa blfy, VaVk gksus dk vans'kk gks ldrk gS fd foHkktu ekSf[kd fd;k gqok gS vr% mUgksaus viuh rlYyh ds fy, vius firkth ls vius gd esa olh;r Hkh djkyh Fkh tks vuko';d rFkk izHkko 'kwU; FkhA cge iSnk gks tkus ls xksj/kunkl th us olh;r esa vius larks"k ds fy, dqN xyr ckrsa Hkh fy[kkbZA ijUrq cge xyr lkfcr gqokA dksbZ VaVk ugha gqokA vkSj og vuf/kd`r] voS/k izHkko 'kwU; o vuko';d olh;r fujFkZd iM+h jghA** 18. Further, (DW2) Dr. Rajendra Joshi, one of the descendants of Balkishan in his cross-examination specifically admitted as under : ^^esjs nknkth ds olh;r ds vuqlkj ;g tehu xksj/kunkl th dks VªkalQj dh xbZA olh;r eSaus iढ+h Fkh ;s 13@7@49 dh FkhA** 19. Evidently, the execution of the will was not disputed by the defendants themselves. The only issue raised was that Balkishan had no right to execute the said will and that he did not execute the same with a sound mind. Therefore, in the opinion of this Court, the will in question which was an admitted document on record was firstly, not even required to be proved by the plaintiff and secondly, even if it is assumed that the same was required to be proved, Section 68 of the Evidence Act would not apply. Therefore, in the opinion of this Court, the will in question which was an admitted document on record was firstly, not even required to be proved by the plaintiff and secondly, even if it is assumed that the same was required to be proved, Section 68 of the Evidence Act would not apply. As it was proved on record, neither the executant nor the attesting witnesses were alive, presumption under Section 90 was the most plausible recourse and the same was rightly adopted by both the Courts below. Section 90 of the Act reads as under: “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 was duly executed and attested by the persons 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 applies also to section 81.” 20. So far as the pre-requisites for taking a presumption under Section 90 are concerned, the document (will) being more than 30 years old is not in dispute and the same has been placed on record by the plaintiff in whose custody it ought to have been and the said fact being undisputed, the findings as arrived by the Courts below do not deserve any interference by this Court. 21. In view of the above analysis and observations, no substantial question of law arise in the present appeal and the same is therefore, dismissed. 22. Stay petition and all pending applications stand disposed of. 23. After the judgment being pronounced, counsel for the appellant prayed for grant of two months time for vacation of the premises. The prayer is allowed and two months’ time is granted to the appellants to handover the vacant possession of the suit property to the respondents. 22. Stay petition and all pending applications stand disposed of. 23. After the judgment being pronounced, counsel for the appellant prayed for grant of two months time for vacation of the premises. The prayer is allowed and two months’ time is granted to the appellants to handover the vacant possession of the suit property to the respondents. It is directed that the appellants shall not transfer, alienate or create any third party rights in the property meanwhile.