J.P Gupta, J. - This first appeal has been preferred against the judgment dated 5.5.2014 passed by 3rd Additional Sessions Judge, Chhindwara, in Civil Suit No.30-A/12 whereby the appellant has been directed to vacate the possession of the suit house and hand over the same to respondents/plaintiffs within 60 days.

2. It is admitted fact that respondent/plaintiff Kamta Prasad and the appellant/defendant Narbad are real brothers and suit property Batta No. 526, area 1800 square feet is situated at village Loniya Karbal, District Chhindwara.

3. The facts giving rise to this appeal, briefly stated, are that the respondent/plaintiff Kamta Prasad filed the present suit before the District Judge, Chhindwara stating that the aforesaid suit property was the property of the ownership of his father (deceased) Fulla who executed a Will on 20.6.2005 in favour of the respondent/plaintiff and after the death of the father he became the owner of the suit property in as much as he was residing out of Chhindwara and availing this opportunity the appellant/defendant Narbad parted the possession of the aforesaid property to the defendant no. 2 on land and he is not ready to vacate the suit house, therefore, notice was given to the respondents/defendants on 27.4.2011. Despite receiving of notice the suit house was not vacated, therefore, by filing the suit, prayer has been made to direct the defendants to deliver the possession along with mesne profit at the rate of Rs. 500/- per month.

4. On behalf of the defendant/respondent no.2 the suit has not been contested and against him the suit proceeding has been conducted ex-parte. The appellant Narbad has stated in his written statement that description of the property in the suit is not correct and father (deceased) Fulla was not the owner of the property. He had no right to execute the Will of the property and the defendant no.1/appellant was in possession of the property and rightfully parted the possession to defendant no.2/respondent no. 2 for the purpose of carrying out repairing work as watchman and after completion of the repairing work, defendant/respondent no. 2 handed over the possession to the defendant no.1/appellant and, at present, the suit house is in the possession of the defendant no.1/appellant. Further stated that the land on which the house is situated belongs to the Government being the Abadi land and the person who is in possession has a right to use of the land and the appellant was in possession of the land during the life time of his father, therefore, he has right to continue in possession over the suit property. The respondent no.1/plaintiff no.1 Kamta Prasad has no right to dispossess him, hence the suit be dismissed.

5. Learned trial Court after recording the statement of witnesses has held that the land on which the suit house was situated was purchased by deceased Fulla vide sale deed dated 25.9.1946, Ex. P10, which is more than 30 years old document about which under Section 90 of the Evidence Act, there is a presumption that the same was executed in accordance with law. The learned trial Court further held that the statement of Kamta Prasad P.W.1 and admission of appellant/defendant Narbad D.W. 1 establishes the fact that the house was constructed by the father of the plaintiff and defendant no. 1 and the defendant no.1 has failed to prove that it was constructed by him and in this case, the execution of the Will has not been challenged by defendant no. 1/appellant and the plaintiff/respondent has proved the execution of the Will by the statement of the attesting witness Krishna Kumar P.W. 2. On the aforesaid finding the suit has been decreed.

6. Defendant no. 1 has challenged the aforesaid judgment and decree on the ground that the learned trial Court has not appreciated the evidence in right perspective and the father (deceased) has no right to execute the Will of the property of which he was not the owner as the land on which the suit premises was situated and the same was the Government land as Abadi Bhumi, therefore, on the basis of the Will, plaintiff/respondent does not derive any title on the suit property and the description of the property mentioned in the plaint and the Will Ex. P-1 and the sale deed Ex. P-10 are different and the learned trial Court has ignored the aforesaid aspects and considering the averment with regard to aforesaid land to be correct, has wrongly arrived at the conclusion that the respondent/plaintiff has a right to get vacant possession of the suit land. Hence the impugned judgment and decree be set aside.

7. Learned counsel appearing on behalf of the plaintiffrespondent has submitted that the learned trial Court has not committed any legal error in arriving at the aforesaid conclusion. The evidence adduced by both the parties has been appreciated in right perspective based on admission of the appellant/defendant no. 1. Hence the appeal be dismissed.

8. Having heard, learned counsel for the parties and perusal of the record, the only question arises for consideration is whether the learned trial Court has committed legal error in arriving at the conclusion that the suit house belonged to deceased Fulla who executed Will in favour of the plaintiff/the respondent No. 1.

9. The learned trial Court has placed reliance on the sale deed Ex. P-10 dated 25.9.1946 which is more than 30 years old document about which as per the provision of Section 90 of the Evidence Act, it will be presumed that the same has been executed in accordance with law. There is nothing to rebut the aforesaid presumption, therefore, the document Ex. P-10 establishes the fact that deceased Fulla purchased the suit land from Kariya in the year 1946. Kamta Prasad P.W.1 has stated that on the aforesaid land a house was constructed by his father during his life time and this fact has been admitted by the appellant/defendant no. 1. Narbad D.W.1 and has failed to produce any evidence establishing that it was constructed by him. In the circumstances, learned trial Court has not committed any error arriving at the conclusion that the suit house was constructed by deceased Fulla.

10. The execution of the Will Ex. P-1 has been proved by the statement of attesting witness Krishna Kumar P.W. 2. There is nothing on his statement to discard his testimony which categorically establishes that the Will was executed by deceased Fulla voluntarily, consciously and understanding the fact mentioned in the Will before him and another witness Sudhir. Learned counsel appearing on behalf of the appellant is unable to point out any error in the aforesaid finding.

11. On perusal of the plaint with regard to averment about the identification of the suit house and the averment in sale deed Ex. P10 and in the Will Ex. P-1, it is clear that there is no discrepancy with regard to identification of the suit property and the demarcations are similar in the plaint and the Ex. P-1 and the P-10.

12. Learned counsel appearing on behalf of the appellant is unable to show any law that the house built up on the Abadi land cannot be devolved by Will and if the person who has possession has a right to occupy it despite of that no right of ownership vested on him. Contrary to it, as per the provision of Section 246 of the MPLRC, the person having house on the Abadi land will be deemed to be Bhumiswami of the land and the right of the Bhumiswami is transferable under Section 165 of the MPLRC, therefore, deceased Fulla who was the Bhumiswami of the land and owner of the house had legal right to dispose of his property after his death, in accordance with his will by executing the Will.

13. In view of the aforesaid discussion, it is found that the learned trial Court has not committed any legal error in dismissing the suit. Hence this appeal has no substance. Resultantly, the appeal is dismissed and the judgment and decree passed by the learned trial Court is confirmed.