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Bighas was in the occupation of both these brothers as non occupancy tenants on payment of rent to the owner, Kewal Ram. The predecessor-in-interest of the appellants purchased the land in question in the year, 1969 for a consideration of Rs.5,000/- and mutation No.374 to this effect was also sanctioned on 28.12.1969. However, the tenancy of Shri Munnu to the extent of half share was not disturbed nor the tenancy of the land to the extent of half share was ever resumed by the father of the appellants. As such, the predecessor-in-interest of the appellants-defendants became the owner to the extent of half share and the predecessor-in- interest of the respondents-plaintiffs remained non occupancy tenant over the land to the extent of half share. It was further the case of the respondents-plaintiffs that after mutation No.374 had been entered, the name of Munnu as a non-occupancy tenant to the extent of half share was deleted illegally and in an unauthorized manner and the predecessor-in-interest of the appellants-defendants was wrongly show as owner in possession of the entire suit land. Lastly, it was averred that with the coming into force the H.P. Tenancy and Land Reforms Act, 1974, Munnu automatically became owner of the suit land to the extent of half share and, therefore, entry to the contrary in the revenue record was wrong and illegal.
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3. The suit was contested by the appellants-defendants by filing written statement, wherein, preliminary objections regarding maintainability of the suit, no cause of action, suit being barred by limitation etc. were raised.
4. On merits, it was contended that thought the predecessors- in-interest of the parties were living together at village Dhar, but later on, Mani Ram @ Munnu shifted to village Johri, Pargana Nog, Tehsil Pachhad, District Sirmour and relinquished his right of tenancy over the suit land on 12.12.1968 and thereafter it was the predecessor-in-interest of the appellants-defendants who remained in possession of the land as a tenant and later on purchased the right, titled and interest of ownership of the suit land from the land owner vide registered sale deed No.135 dated 21.11.1969. It was further averred that the mutation on the basis of the sale deed was well within the knowledge of the predecessor-in-interest of the respondents-plaintiffs and after the relinquishment neither the predecessor-in-interest of the respondents-plaintiffs nor the respondents remained in possession of the suit land as the predecessor-in-interest of the appellants-defendants and thereafter the appellants-defendants were continuing to be the owners of the suit land and, therefore, the land had accordingly been mutated in their favour. Lastly, it
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was averred that Munnu had not acquired any right as he had shifted much prior to the commencement of the H.P. Tenancy and Land Reforms Act, 1974 and having shifted his rights prior to the purchase of the land by the predecessor-in-interest of the appellants-defendants, it was their predecessor-in-interest who was in exclusive possession of the suit land and thereafter the possession was now with the appellants-defendants.
5. On the basis of the pleadings, learned trial Court framed the following issues:-
"1. Whether the plaintiffs and defendants are joint owner-in-possession of the suit land situated in mauja Tehsil and District Solan to the extent of half share each?... OPP
2 Whether the deletion of name of Munu predecessor-in-interest of plaintiff's in mutation No. 374 dated 28-12-69 and subsequent revenue entry in jamabandi to this effect are wrong, illegal, null and void?...OPP
3. Whether Munu, predecessor-in-interest of plaintiff had become owner of suit land to the extent of half share by virtue of H.P. Tenancy and Land Reforms Act?...OPP
4. Whether revenue entry existing in favour of Sahbu and thereafter in favour of defendants are wrong, illegal, null and void and have no
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binding effect upon rights, title and interest of plaintiff?... OPP
5. Whether the plaintiffs are entitled to decree for permanent prohibitory injunction?...OPP 5a Whether plaintiffs have no locus standi to file the present suit as alleged?...OPP
5b Whether Munnu had relinquished his tenancy which has been acknowledged by him in writing dated 12-12-1968 voluntarily, as alleged?
...OPP
5c Whether suit is time barred, as alleged?...OPD 5d Whether defendants are owner-in-possession of suit property as per sale deed dated 21-11- 1969, as alleged?...OPD
5e Whether suit has not been properly valued for the purpose of court fee and jurisdiction, as alleged?...OPD
5f Whether suit is not maintainable, as alleged?
... OPD
6. Relief."
6. The learned trial Court, after recording the evidence and evaluating the same, decreed the suit by declaring the plaintiffs- respondents to be the joint owners in possession of the suit land to the extent of half share and the defendants-appellants were also restrained from dis-possessing them from the suit property
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by way of permanent prohibitory injunction till the land was partitioned by metes and bounds.
7. Aggrieved by the judgment and decree passed by the learned trial Court, appellants-defendants also filed an appeal before the First Appellate Court, however, the same was also dismissed vide judgment and decree dated 31.12.2016. Consequently, the appellants have filed the instant appeal which came to be admitted on 21.3.2017 on the following substantial questions of law:-
"3. Whether the ld. First Appellate Court has misconstrued the section 90 of the Indian Evidence Act qua Ex.P.W.3/C?
8. I have heard learned counsel for the parties and have gone through the record.
9. In order to decide the substantial question of law, it would be necessary to reproduce Section 90 of the Indian Evidence Act, which reads as under:-
"90. Presumption as to documents 30 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
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the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed or attested."
10. The aforesaid Section came up for consideration before a Co-ordinate Bench of this Court in Budhi Singh and another vs. Ashok Kumar and another, ILR 2015 (3) 531 and it was observed as under:-
"10. Principle behind the aforesaid provision is of necessity and convenience. The underline principle being, that if a document, private or otherwise is produced from proper custody and is on its face free from suspicion, the Court may presume that it has been signed or written by the person whose signature it bears or in whose handwriting it purports to be and that it has been duly attested and executed, if it purports to be so. To raise such presumption, prima facie proof is necessary to show that the document is 30 years old. But however, such presumption is rebuttable. Where the party opposing the document disproves it to be so by convincing evidence, the Court is duty bound to call the party, relying on it to prove it. Where the factum of execution is not in dispute, no evidence is necessary to prove its genuineness. Proper custody under the Section would mean the custody of any
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person, so connected with the deed, that possession thereof, does not raise any suspicion or fraud.
11. The power conferred upon the Court is absolutely discretionary. It may or may not draw the presumption and would depend upon the factual matrix of each case. Even if the document is 30 years old, comes from the proper custody, the Court may still call upon the party to prove the same as also its contents. Court is not, under all circumstances, obliged to draw such presumption, and the Court is duty bound to consider evidence, external and internal of the document, in order to enable it to decide, whether in any particular case, it should or should not presume proper signature and execution. Age alone is not the sole criteria. However, while refusing to draw presumption, Court cannot be capricious in its attitude. But then even in the absence of any objection, taken at the time of admission of the document, Court can refuse to draw the statutory presumption. Mere tendering of a document in evidence cannot be regarded as proof of proper custody.
12. Normally Appellate Court should be loathe in interfering with the discretion exercised by the trial Court in refusing to draw the statutory presumption unless and until the discretion so exercised is arbitrary, capricious, illegal or shocks the conscious of the Court.
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13. The apex Court in Gangamma and others Versus Shivalingaiah, (2005) 9 SCC 359, has held that even if formal execution of a document is proved, the same by itself would not lead to a presumption that recitals contained therein are also correct. Mere execution of a document does not lead to the conclusion that the recitals made therein are correct, and subject to the statutory provisions contained in Sections 91 and 92 of the Evidence Act. It is open to the parties to raise a plea contra thereto. Also the presumption enacted under the Section can be raised in relation to the original document and not copies thereof. [Also: Tilak Chand Kureel Versus Bhim Raj, 1969(3) SCC 367; Lallan Singh and others Versus State of Bihar, 1969
(3) SC 765; Shiv Lal and others Versus Chet Ram and others, 1970 (2) SCC 773 and Lakhi Baruah and others Versus Padma Kanta Kalita and others,
1996(8) 357].
14. Section 90 of the Evidence Act is based on the legal maxims: nemo dat qui non habet (no one gives what he has not got); and nemo plus juris tribuit quam ipse habet (no one can bestow or grant a greater right, or a better title than he has himself). This section does away with the strict rules, as regards the requirement of proof, which are enforced in the case of private documents, by giving rise to a presumption of genuineness, in respect of certain documents that have reached a certain age.
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The period is to be reckoned backward from the date of the offering of the document, and not any subsequent date i.e. the date of decision of suit or appeal. [See: State of Andhra Pradesh and others Versus Star Bone Mill and Fertiliser Company,
(2013) 9 SCC 319.]
15. The apex Court in Mahasay Ganesh Prasad Ray and another Versus Narendra Nath Sen and others, AIR 1953 SC 431, had the occasion to deal with Book of Accounts which undoubtedly were 30 years old and came from the possession of its keeper. Yet Court held that:-
"3. … … … Exhibit 32 series as noticed by the High Court, consists of loose sheets of papers. They have not the probative force of a book of account regularly kept. Being old documents, naturally, the writer is not called and barring the fact that they were produced from the Receiver's possession there is nothing to show their genuineness. Section 90, Evidence Act, does not help the appellants because this is not a case where the signature of a Particular person is in question or sought to be established. … …".
16. The apex Court in Harihar Prasad Singh and another Versus Deonarain Prasad and others, AIR 1956 SC 305, the Court has observed as under:-
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"8. Strong reliance was placed by the respondents on Exhibits F-1 and F-1(1) which are khatians relating to the suit lands published on 7-12-1909 recording them as in the possession of the defendants of the second party as 'kaimi' and on the presumption under S. 103-B that entry is correct. This presumption, it is contended, is particularly strong in the present case, because the predecessors-in-title of the plaintiffs were parties to the proceedings and contested the same, and that the record of rights was made after considering their objections. The plaintiffs, however, denied that they were parties to the proceedings, and contended that they were taken behind their back by the mortgagees and the second party defendants acting in collusion with a view to defeat their rights. Exhibits A-1 and A-1(1) are certified copies of the objection petitions stated to have been filed by the mortgagors under S. 103-A of the Act, and they purport to have been signed by one Chulai Mahto as karpardaz of some of the mortgagors. The plaintiffs deny the genuineness of the signatures in
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Exhibits A-1 and A-1(1) and also the authority of Chulai Mahto to represent the mortgagors. There is no evidence that the signatures on Exhibits A-1 and A-1(1) are true, but the defendants rely on the presumption enacted in S. 90, Evidence Act, in favour of their genuineness. But Exhibits A-1 and A- 1(1) are merely certified copies of the objection petitions filed before the Survey Officer and not the originals, and it was held in - 'Basant Singh v. Brij Raj Saran Singh', AIR 1935 PC 132 (C) that the presumption enacted in the section can be raised only with reference to original d cuments and not to copies thereof. There is the further difficulty in the way of the respondents that the documents are signed by Chulai Mahto as agent, and there is no proof that he was an agent, and S. 90 does not authorise the raising of a presumption as to the existence of authority on the part of Chulai Mahto to represent the mortgagors. It is again to be noted that the objection on the merits raised in Exhibits A-1 and A-1(1) that the lands are bakasht lands in the possession of mortgagees is not one which it was to
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the interests of the mortgagors to put forward, as, if accepted, it would preclude them from admitting tenants in respect of them, without conferring on them the status of settled raiyats and occupancy rights under S. 21 of the Act. It was only if the lands were private lands that the proprietor would be entitled to cultivate them personally, and that was the claim which they had been making consistently from 1893 onwards. The claim put forward in Exhibits A-1 and A-1(1) is destructive of the rights claimed all along by the mortgagors, and amounts to an admission that the lands are not private and raises the doubt that the petitions were not really inspired by them. It should also be mentioned that at the hearing of the petition, no evidence was adduced by the mortgagors, and the decision of the Survey Officer was given practically 'exparte'. The mortgagees were parties to the proceedings, and they did not appear and produce the mortgage deeds, Exhibits 2 and 3, under which they got into possession, and which described the lands as sir.' It was to the interests of the mortgagees that the
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lands should be held to be 'sir', and it was further their duty to defend the title of the mortgagors as against the claim made by the tenants that they were raiyati lands. Why then did they not produce Exhibits 2 and 3 at the hearing?
The recitals in the lease deed, Exhibit 2(a) which was executed by the defendants of the second party, were inconsistent with their claim that the lands were raiyati. Why did they not produce it at the hearing? There is, therefore, must to be said for the contention of the appellants that the proceedings evidenced by Exhibits A-1 and A-1 (1) were collusive in character.
9. But even assuming that they were real, that would not materially affect the result, as the true effect of a record of rights under S. 103- A is not to create rights where none existed but simply to raise a presumption under S. 103-B that such rights exist, and that presumption is one liable to be rebutted. There is a long line of authorities that a person who attacks a record made under S. 103-A as incorrect discharges the burden which the law casts on him under S. 103-B by showing that it was not
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justified on the materials on which it is based. Vide - 'Bagha Mowar v. Ram Lakham', AIR 1918 Cal 807 (D) and - 'Eakub Ali Zamin v. Syed Muhammad Akbar Ali Khan', AIR 1929 Cal 450 (E). And where, as here, no evidence was placed before the authorities who made the record, he has only to produce evidence which satisfies the Court that the entry is erroneous. Whether the question is considered with reference to the presumption under S. 120(2) or S. 103-B, the position is the same. The plaintiffs who claim that the lands are kamat have to establish it by clear and satisfactory evidence. If the evidence adduced by them is sufficient, as we have held it is, to establish it, the presumption under S. 103-B equally with that under S. 120(2) becomes displaced. In the result, we are of opinion that the suit lands are the private lands of the proprietor".
17. In Madamanchi Ramappa and another Versus Muthaluru Bojjappa, AIR 1963 SC 1633, Court was dealing with a case where admissibility of certified copy of public document was an issue. Sale deed even if registered under the Registration Act, was not held to be a public document.
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18. The apex Court in Vishwanath Bapurao Sabale Versus Shalinibai Nagappa Sabale and others, (2009) 12 SCC 101, has only held that there is a presumption with regard to valid execution of a registered document. 19. A private document produced from the custody from a private party, though 30 years old, cannot have the same weight as a public document. [See: Pavitri Devi and another Versus Darbari Singh and others, (1993) 4 SCC 392.] 20. The apex Court in Union of India Versus Ibrahim Uddin and another, (2012) 8 SCC 148, has held that:-
"85.3. ……..Presumption under Section 90 of the Evidence Act in respect of 30 years' old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it. That the contents of the documents are true or it had been acted upon, have to be proved like any other fact………".
11. Bearing in mind the aforesaid exposition of law, it needs to be noticed that it was the defendants' case in the written statement that Munnu Ram vide document dated 12.12.2968 had relinquished his share in favour co-tenant, Sahibu. In order to
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prove the relinquishment, the appellants-defendants had only exhibited the signatures of Kewal Ram, at Ex.DW3/C and not the document itself. If that was not enough, DW-3 Kewal Ram, while appearing as a witness had in his cross-examination clearly stated that he did not know what was written in Ex.DW3/C nor did he know the purpose of the execution of the document. He even did not know whether Ex.DW3/C was written in his presence or not. He did not know who put signatures on Ex.DW3/C and the place where this document had been executed. He admitted that both Munnu and Sahibu were the co-tenants and used to pay rent to him. That apart, it would be noticed that the document Ex.DW3/C is in Urdu and its Hindi translation as alleged by the appellants-defendants, is mark 'D'. Neither the person, who translated this document in Hindi was produced in the witness box nor was the same proved in accordance with law. In this background, if the provisions of Section 90 of the Indian Evidence Act are to be applied then no doubt the document is more than 30 years old and is presumed to be genuine, but then it should come from proper custody and care. This document was executed by Munnu by relinquishing his tenancy in favour of the co-tenant Sahibu, then it ought to have come from Sahibu side and not from the side of Kewal Ram, who sold the land to Sahibu, but in fact
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this document was exhibited in the statement of Kewal Ram. The learned First Appellate Court was right when it held that before applying the presumption under Section 90 of the Indian Evidence Act to this document, it was incumbent upon the defendants to have this document translated and copy proved from a proper person.
12. It needs to be reiterated that the presumption under Section 90 of the Indian Evidence Act extends merely to the extent of authenticity of any handwriting contained in or execution or attestation of a document. Section 90 nowhere provides that in terms thereof the authenticity of the recitals contained in any document is presumed. Even if a formal execution of the documents is proved, the same by itself cannot lead to a presumption that the recitals contained therein are also correct as subject to Sections 91 and 92 it is open to the parties to raise a plea contrary thereto.
13. In view of the aforesaid discussions, no fault can be found with the findings rendered by the First Appellate Court with regard to either the interpretation or the applicability of Section 90 of the Indian Evidence Act to the document qua Ex.DW3/C. The substantial question of law is accordingly answered against the appellants-defendants.
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14. In view of the aforesaid discussions and for the reasons stated above, I find no merit in this appeal and the same is accordingly dismissed. The parties are left to bear their own costs.
15. Pending miscellaneous application(s), if any, shall also stand disposed of.
( Tarlok Singh Chauhan ) Judge
July 28, 2023 (KS)