1. The petitioner (Plaintiff) has filed this writ petition under Articles 226 and 227 of the Constitution of India against the order dated 12.8.2008 passed by Additional Civil Judge (Sr. Div.), Jhunjhunu, in Civil Suit No.35 of 2005, whereby his application filed under Section 90 of the Indian Evidence Act, seeking to draw presumption against a patta of 4.10.1948 on the ground of it being more than 30 years old, had been rejected.
2. Briefly stated facts of the case are that the Plaintiff filed a suit through his registered Attorney Mohan Lal, seeking declaration and mandatory injunction against the defendant. The Plaintiff pleaded in his plaint that he had purchased a plot admeasuring 471.6 sq.yrd. by way of registered sale-deed on 19.9.1984. The dimensions and surroundings whereof were mentioned in para Nos.1 and 4 of the plaint. His case was that he left 12 ft. land for Mata Mandir and the remaining land he divided in two plots of 54x30 sq.ft and 54x24.4 sq.ft., and the plot admeasuring 54x30 sq.ft. was encircled with patties and the other plot i.e. 54x24.4 sq.ft. was fenced and thus they both were in his possession. The Plaintiff being out of country, his brother-in-law and also his registered attorney visited the landing question on 18.6.1988 and found that building material was lying and the labour was digging foundation on the plot admeasuring 54x24.4 sq.ft and on being asked, the defendant refused to stop construction and claimed that the land admeasuring 54x24.4 sq.ft. belonged to him. The Plaintiffs attorney tried to convince him but of no avail, hence the suit.
3. The defendant’s case before the trial court was that the land in question was his ancestors and that he had sold to the Plaintiff only plot admeasuring 54x30 sq.ft. for sale consideration of Rs.5,000/- on 12.6.1986, which was scribed in a stamped paper Exhibit A-2. But so far as land admeasuring 52x24.4 sq.ft. was concerned, it was in defendant’s ownership and possession.
4. The Plaintiff filed application along with Patta Thikana Basau dated 4.10.1948 and prayed that the person who issued it, the person who wrote it and the one in whose favourite was issued, have died and the document is more than 30 years old and is produced from proper custody, therefore, presumption under Section 90 of the Indian Evidence Act be drawn.
5. This application was opposed by the respondents, who are LRs of the original defendant, who died during the pendency of the suit, vehemently opposed the application on the ground that the patta was forged and that the fact of patta was not mentioned in the plaint and that it was not shown as to where did this patta remain from 4.10.1948 to 19.9.1984.
6. Learned trial court, after hearing the parties, dismissed the application by impugned, order which is assailed before this court.
7. Heard the parties and perused the impugned order as also the relevant provision.
8. Learned counsel for the petitioner reiterated the facts mentioned in the application and submitted that learned trial court has not appreciated that the patta came from proper custody as it was given to him by the original allottee from whom he bought the plot by registered sale-deed on 19.9.1984 and that the patta was issued by Jagirdar Thikana Rabhubeer Singh in favour of Master Manohar Lal, his vendor and was scribed by Ramkishan Lal and all the three have died, therefore, presumption with regard to the writing signatures, seal of Thikana and word ‘Shree’ of the patta Miti Ashwin Shukla 2 Samwat 2005, be taken.
9. On the other hand, learned counsel for the defendant supported the impugned order and submitted that there is no error of jurisdiction in the impugned order as it has not been passed arbitrarily or capriciously, and it should not be interfered with.
10. I have given my thoughtful consideration to the rival contentions and carefully perused the impugned order as also the authorities cited at Bar.
11. Before adverting to the rival contentions, it is necessary and useful to refer Section 90 of the Indian Evidence Act, which 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 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 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.”
12. The language used in the Section indicates that the presumption raised is a permissive one. Though it is not obligatory on the court to raise the presumption, it is a matter of judicial discretion whether the court will make the presumption or call upon the party to offer other proof.
13. The law on the point has been laid down by their Lordships of the Privy Council in Shafiqunnisa V Shabn Ali Khan (1904) I.L.R. 26 Allahabad 581 (P.C.). It was propounded that where a document more than thirty years old, purporting to come from proper custody, is required by the court before which it is produced, to be proved and is left unproved and there are circumstances, both external and internal, which throw great doubts upon the genuineness of the document, the court can, in the exercise of the discretion vested in it under Section 90, decline to admit it in evidence without formal proof.
14. The principles that are deducible from the authorities cited at the bar, may be summarised thus –
(i) Request for drawing presumption under Section 90 should be made, at the initial stage of the suit and not after the party adduced the evidence and failed to prove the document.
(ii) It is not obligatory on the court to raise the presumption. It is a matter of judicial discretion.
(iii) When genuineness of document is disputed, it is necessary for the court to consider the pleadings surrounding circumstances before exercising its discretion.
15. In this background it is necessary to refer to the Plaintiff’s pleadings in paras 1 and 4 of the plaint, which are reproduced below:-
(Vernacular matter omitted…Ed.)
16. As is clear from para 1 above, the Plaintiff claimed to have purchased 471.6 sq.yd. with the measurements, dimensions and boundaries as shown in paras 1 and 4 of the plaint, by way of registered sale-deed dated 19.9.1984 and said registered sale-deed dated 19.9.1984 reads as under:-
(Vernacular matter omitted…Ed.)
17. The document in question i.e. Patta Thikana Basau, reads as under:-
(Vernacular matter omitted…Ed.)
18. It is clear from above that the land described in the Patta Thikana, matches with the description of the plot, mentioned in paras 1 and 4 of the plaint, bought by the Plaintiff by registered sale-deed dated 19.9.1984 wherein there is a reference of the document dated 4.10.1948. Relevant portion of the sale-deed reads as under:-
(Vernacular matter omitted…Ed.)
19. Thus, the description of the plot purchased by the Plaintiff from Master Manohar Lal by way of registered sale-deed dated 19.9.1984 exactly matches with the description of the plot given in the Patta Thikana Basau dated 4.10.1948, reference of which is given in the sale-deed. The Plaintiff claims that on 19.9.1984, when he bought the plot admeasuring 471.6 sq.yd. with the dimensions shown in the patta, sale-deed and the plaint from Master Manohar Lal, this patta was given to him by the vendor and thus it is produced from proper custody.
20. On the other hand the defendant claims it to be forged, stating that it belonged to his ancestors and that he had sold the adjacent plot admeasuring 54x30 sq.ft. to the Plaintiff on 16.6.1986 for a sale consideration of Rs.5,000/-, which was scribed in a stamp Exhibit A-2, which was witnessed by two witnesses and that exhibit A-2 bore the Plaintiff’s signatures. It was pleaded by the defendant that another plot admeasuring 54x24.4 sq.ft was never sold to the Plaintiff and that it was in his ownership and possession.
21. The stamp Exhibit A-2, relied upon by the defendant, is of a later date i.e. 16.6.1986 and unregistered, whereas the sale-deed on the basis of which Plaintiff claimed title, is of a previous date and is registered and the description of the property matches with the description given in Patta Thikana Basau dated 4.10.1948, reference whereof is in the sale-deed.
22. The patta is produced from the custody of the person who purchased the plot by registered sale-deed from the original allottee of plot from Thikana Basau and thus is from proper custody. The Plaintiff has produced it at the initial stage. The document does not appear to be suspicious on the face of it. The trial court was supposed to consider the evidence, external and internal of the document in order to enable it to decide whether it should or should not presume proper signature and execution.
23. However, since the document in question is said to have been issued by a Jagirdar, it would be appropriate for the trial court to consider and appreciate the relevant provisions of the Rajasthan Land Reforms and Resumption of Jagir Act, 1952. List of the properties submitted by Jagirdar Raghubeer Singh to the Jagir Commissioner at the time of resumption of his Jagir, could be called for from Jagir Commissioner’s Office to find out the fact that the property in question was given on patta by Thikana to the predecessor of the Plaintiff. Learned trial court appears to have been swayed with the private handwriting expert’s report produced by the defendant and did not even appreciate the case of the Plaintiff and the documents filed by him.
24. For the foregoing reasons, this writ petition is allowed, the order impugned is set aside and the learned trial court is directed to call for the list of the properties submitted by the Jagirdar Raghubeer Singh to the Jagir Commissioner at the time of resumption of his Jagir, and decide afresh after considering the relevant provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952.
The petition stands disposed.
Petition allowed.