JUDGMENT : H. P. SANDESH, J. 1. This matter is listed for admission and I have heard learned counsel for the appellant. 2. This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court. 3. The factual matrix of case of the plaintiff before the Trial Court while seeking the relief of declaration and mandatory injunction in O.S.No.177/2009 is that he is the absolute owner of ‘A’ and ‘B’ schedule properties and also sought for the declaration that alleged Will dated 31.05.1972 executed by the grandfather of the plaintiff in favour of defendant in respect of suit schedule properties are null and void and not binding to the plaintiff and also sought the mandatory injunction directing the defendant to hand over vacant possession of all ‘A’ and ‘B’ schedule properties and also issue direction to the Grama Panchayath and concerned authority to enter his name in the records. The specific contention of the plaintiff is that the suit schedule property originally belongs to Dodda Halappa. The father of the plaintiff is the only son and he succeeded to all the properties of family of Dodda Halappa and also contend that all the properties are ancestral properties and they are inherited through main propositus Ningappa and grandfather of the plaintiff had not owned any self-acquired properties during his lifetime. It is also contended that schedule ‘A’ and ‘B’ properties are ancestral properties among other ancestral properties in the family of plaintiff. The grandfather of plaintiff had no manner of individual right over the suit schedule ‘A’ and ‘B’ properties to dispose in any manner. Even though Will was executed in favour of defendant in respect of ‘A’ and ‘B’ schedule properties and the same will not convey any right to the defendant. It is further contended that item Nos.1 and 4 of schedule ‘A’ property land and item No.3 of ‘B’ schedule property stands in the name of Dodda Halappa, who was the second son of Ningappa at the relevant point of time i.e., at the time of execution of the alleged Will on 31.05.1972, as such, the said Doda Halappa has no manner of right to execute the Will. It is contended that he came to know about the said Will in 2008 and immediately, he applied for the documents and filed the suit. 4. It is contended that he came to know about the said Will in 2008 and immediately, he applied for the documents and filed the suit. 4. In pursuance of the suit summons, defendant appeared and filed written statement. He specifically took the contention that suit itself is not maintainable and the Will was executed on 31.05.1972 and in terms of the Will, defendant becomes the absolute owner of the property and also contend that even mutation entries are also recorded in the name of defendant subsequent to execution of the Will and the same was also not challenged by the father of the plaintiff during his lifetime and it is more than 30 year old registered document. The plaintiff has no right to challenge the said registered Will and plaintiff as successor of his father's property and when the father had not challenged the Will, this plaintiff cannot challenge the same. 5. The Trial Court considering the pleadings of the parties, framed the issues whether the plaintiff proves that he is the absolute owner of the suit schedule ‘A’ and ‘B’ property, whether the Will executed by the grandfather dated 31.05.1972 is null and void and whether the defendant proves that Will dated 31.05.1972 executed by the grandfather of the plaintiff is valid. The Trial Court having considered both oral and documentary evidence, particularly considering the recitals of the document Ex.D25, wherein grandfather specifically narrated and recited in the document that there was a partition between the Executant of the Will and his son and the property which is willed in favour of his daughter was allotted to him and hence, he executed the Will in favour of his daughter and based on the said Will, even properties are mutated in favour of the defendant and father had not questioned the same during his lifetime and also taken note of admission on the part of P.W.1 in the cross-examination and discussed in detail in paragraph Nos.19 to 21 and Ex.P2 is M.R.No.21/1980-1981, wherein it clearly stated that suit schedule properties are mutated in the name of defendant No.1-Smt. Veeramma by virtue of the registered Will executed by late Halappa and there is a remark placed on Ex.P2 that nobody has objected to entering the name of defendant No.1-Smt. Veeramma and said remarks was clearly mentioned in Ex.P2 and defendant has also produced RTC extracts, patta receipt book and mutations which clearly goes to show that Will is acted upon and during the lifetime of father of the plaintiff, the said Will was not questioned and at present, the plaintiff has stated that he came to know about the said Will in the year 2008 which is not believable, since the Will was acted upon in the year 1980-1981 itself and the mutation was changed. Even in paragraph No.20, extracted the answer elicited from the mouth of P.W.1 and discussed the evidence of P.W.1 in paragraph Nos.21 and 22 and in paragraph Nos.22 and 23, admissions are extracted. While coming to conclusion that Will was acted upon, this fact was known by the father of the plaintiff and recitals in the said Will very clearly states that in between grandfather and father of plaintiff, the properties are divided and share fallen to the grandfather of the plaintiff are bequeathed in favour of Smt. Veeramma. Having considered all these material into consideration, in paragraph No.27 comes to the conclusion that burden is on the plaintiff to prove that he came to know about the same and also considering the documents which came into existence long back, even considered Sections 68 and 69 of Indian Evidence Act. Having considered all these material into consideration, in paragraph No.27 comes to the conclusion that burden is on the plaintiff to prove that he came to know about the same and also considering the documents which came into existence long back, even considered Sections 68 and 69 of Indian Evidence Act. When plaintiff has knocked the door of the Court, then he has to discharge his burden and also considering the material on record, even the evidence of D.W.1 is extracted in paragraph Nos.29 and in paragraph Nos.30 and 31 comes to the conclusion that the defendant has perfected the title by way of Will and the very contention of the plaintiff that Will is null and void was not accepted and dismissed the suit. 6. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the point whether the Trial Court committed an error in dismissing the suit and whether it requires interference of this Court. 6. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the point whether the Trial Court committed an error in dismissing the suit and whether it requires interference of this Court. The First Appellate Court also having reassessed both oral and documentary evidence, particularly in paragraph Nos.14 and 15, considered both oral and documentary evidence and in paragraph No.18, taken note of recitals of document of Ex.D25 and also taken note of entries made subsequent to execution of the Will and though Will was executed in the year 1972, till 2009, the Will was not questioned either by the father and this appellant filed the suit only in the year 2009 and also taken note of the fact that properties which were allotted in favour of his father were not included in the present suit and only made the claim in respect of the willed properties that is ‘A’ and ‘B’ schedule properties and all these details were taken note of in paragraph No.19 and even taken note of the fact that subsequent to execution of the Will, the defendant and the family members are residing in the said property and they are enjoying the property from the date of execution of the Will for more than around 40 years and the same is considered by the First Appellate Court and the Will was executed in the year 1972 and property was transferred in the name of defendant No.1 in the year 1981 and father of the plaintiff died in the year 1991 and for a period of 20 years, father had not questioned the said Will. Considering all these material, the First Appellate Court concurred with the judgment of the Trial Court. 7. The main contention of learned counsel for the appellant before this Court in this second appeal is that both the Courts have committed an error in holding that Will dated 31.05.1972 being a 30 years old document should be presumed to be valid and legal without the defendant proving that the testator had the legal capacity to bequeath joint family properties. It is also the main contention of the counsel that both the Courts have committed an error in holding that suit was barred by limitation when the plaintiff did not had the knowledge of the Will. Hence, this Court has to admit the second appeal and frame substantial question of law. 8. Having heard learned counsel for the appellant and also considering the pleadings of the parties before the Trial Court and also the reasoning of the Trial Court, it is not in dispute that property belongs to grandfather, Halappa. The only contention of learned counsel appearing for the appellant is that grandfather ought not to have executed the Will, since the same is an ancestral joint family property. On perusal of document Ex.D25-Will, it is very clear that the same is a registered Will which was executed in the year 1972 and there is a clear recital in the document of 1972 that there was partition between the grandfather and his son i.e., father of the plaintiff long back and share allotted to the grandfather was willed in favour of his daughter. P.W.1 also categorically admits that defendant No.1 is his paternal aunt and even categorical admission was also given that subsequent to execution of the Will, the properties which are willed in favour of defendant No.1 are in enjoyment of the family of defendant No.1 and her family members. Apart from that, he categorically admits that father had not challenged the said Will and also it is very clear that Will was executed in the year 1972 and father of the plaintiff died in the year 1991 almost after 19 years of execution of the said Will. 9. It is also important to note that in terms of the Will, the parties have also acted upon and property was transferred in the name of defendant No.1 in the year 1980-1981 itself and M.R. also came into existence and all the revenue records stands in the name of defendant No.1. 9. It is also important to note that in terms of the Will, the parties have also acted upon and property was transferred in the name of defendant No.1 in the year 1980-1981 itself and M.R. also came into existence and all the revenue records stands in the name of defendant No.1. The only contention raised by the appellant is that he came to know about the Will only in the year 2008 and then, he filed the suit in the year 2009 and the fact that this suit is filed only in respect of the willed property i.e. suit schedule ‘A’ and ‘B’ properties and both the Courts have also taken note of the fact that the property which are standing in the name of the father of the plaintiff are not included and not questioned and the eyes of the plaintiff are only on the willed property, that too, it is questioned after almost 38 years and all these factors were taken note of and even there is no examination of witnesses with regard to the Will is concerned. But the very father of the plaintiff had not questioned the Will for a period of almost 19 years and he was having all the knowledge about transfer of property in favour of defendant No.1 and based on the said Will, the defendant No.1 is enjoying the property from more than almost 38 years and suit is filed in 2009. All these factors were taken note of by the Trial Court as well as the First Appellate Court and in detail discussed the same particularly, Ex.P2 i.e., M.R.No.21/1980- 1981 and the property was transferred in the name of defendant No.1 based on the said Will and the said Will was executed by the grandfather, that too, after the partition. 10. Though an attempt is made by learned counsel appearing for the appellant before this Court at the time of admission that there was no partition, but suit is not filed for the relief of partition, but only for the relief of declaration to declare that Will is not valid. But, the same was acted upon immediately after the death of grandfather and M.R. also came into existence in 1980-1981 and even properties are also enjoyed by defendant No.1 in respect of the properties which are willed in favour of defendant No.1. But, the same was acted upon immediately after the death of grandfather and M.R. also came into existence in 1980-1981 and even properties are also enjoyed by defendant No.1 in respect of the properties which are willed in favour of defendant No.1. When such being the case, I do not find any perversity in the finding of Trial Court as well as the First Appellate Court in appreciating both oral and documentary evidence. Hence, the contention of learned counsel for the appellant cannot be accepted and both the question of fact and question of law are considered by both the Trial Court and the First Appellate Court and not a case to invoke Section 100 of CPC. 11. In view of the discussion made above, I pass the following: ORDER The regular second appeal is dismissed.