Gulzarilal and ors. Vs. Bhagwati Prasad and ors. - Court Judgment

P.N. Shinghal, J.

1. This second appeal of the defendants arises from the appellate judgment and decree of the District Judge of Jhunjhunu dated December 23. 1959. in these circumstances.

2. There is a piece of land situated in village Gudhagorji in Jhunjhunu District which has been shown in site-plan Ex. 1 The plaintiffs claimed that the land belonged to the 'panadars' of the 'pana' of Kishore Singh, that the 'panadars' sold it to them under sale-deed Ex. 24 dated Chaitra bad 9, Section 1956, and that the plaintiffs and their ancestors remained in continuous possession of that land. It was further pleaded that the land was expressly purchased for the construction of a house, and that the father of the plaintiffs constructed a masonry compound wall on the southern side and enclosed the remaining three sides by mud walls The plaintiffs had, however, to live outside in connection with their business and the compound walls deteriorated by lapse of time. The financial position of the plaintiffs did not enable them to build a house. The plaintiffs claimed, however, that the foundations of the masonry compound wall were still there. The defendants held out threats to them regarding the land, so the plaintiffs initiated proceedings against them under Section 107 of the Code of Criminal Procedure in the court of the Sub Divisional Magistrate of Udaipur (Shekhawati), January 22, 1954 was fixed for the hearing of those proceedings but, according to the plaintiffs, the defendants forcibly dispossessed them on January 15, 1954 and enclosed the land with a fresh thorn fencing. The plaintiffs therefore instituted the present suit on Jan, 23, 1954, for possession and they impleaded Sugan Singh and Hanuman Singh as defendants because the defendants claimed that they had purchased the land from them.

3. Defendants Gulzari Lal. Sheo Pra-shad and Mohan Lal denied the plaintiffs' ownership or possession of the disputed land and pleaded that it never belonged to the 'pana' of Kishore Singh. According to them, the land belonged to the 'pana' of Ghadika of which Sugan Singh and Hanuman Singh were the descendants. Further, the defendants pleaded that the suit land was known as 'Bera Bhadwalla' and that it was purchased by them from the said Sugan Singh and Hanuman Sinsh by means of sale-deeds Exs. A-1 and A-2 dated Mangsir Sud 15, S. 2005 and that they were, in fact, in possession of the land even earlier. Defendants Sugan Singh and Hanuman Singh claimed to be the descendants of the 'panadars' of Ghadika and to be the rightful owners of the suit land. They supported the defendants' version regarding its sale. Certain other pleas were taken in the written statements of the two sets of defendants, but nothing turns on them and 1 am therefore leaving them out of consideration.

4. The trial court framed issues on the questions whether the suit land belonged to the plaintiffs and was in their possession up to January 15, 1954, and whether the first three defendants forcibly took possession of it on that date. Both these points were decided in favour of the plaintiffs by the Civil Judge of Jhunjhunu and their suit was decreed, except for the direction that the plaintiffs shall not construct any building within 5 feet of their western boundary because of the existence of 'todas' and 'jharokas' etc. of the adjoining houses of Kalu Ram and Maoji 'Ram. The defendants preferred an appeal and the plaintiffs a cross-objection. The learned District Judge dismissed the appeal but allowed the cross-objection, so that the plaintiffs succeeded not only in obtaining a confirmation of the trial court's decree regarding the land but also in getting rid of the direction prohibiting them from making any construction within 5 feet of the boundary of their land towards the west. It is against that judgment and decree of the lower appellate court that the present appeal has been filed by all the five defendants. It may be mentioned that defendant Mohan Lal died during the pendency of the appeal and it is not disputed that his legal representatives have duly been brought on the record.

5. It would thus appear that the main point in controversy was whether the suit land belonged to the plaintiffs by virtue of sale-deed Ex. 24 dated Chaitra bad 9, S. 1956. The two courts below have given their reasons for deciding the point in favour of the plaintiffs. The finding rests mainly on Ex. 24 which has been held to be the title deed of the plaintiffs. Mr. Parakh, learned counsel for the defendants-appellants, has tried to assail the sale-deed on two grounds. Firstly, he has argued that the courts below erred in raising a presumption under Section 90 of the Evidence Act regarding the execution of document Ex. 24 because it does not purport to bear the signatures of the executants. It contains the signatures of some other persons and it has been urged that the plaintiffs have not proved that those who actually signed the document had the authority if the so-called vendors to execute it. Secondly, the learned counsel has argued that Ex. 24 is not a sale-deed at all,

6. So far as the first point is concerned, it appears that when the trial court decided to apply Section 90 of the Evidence Act to document Ex. 24, no objection was taken that the signatures on it were not those of the executants, or that the document could not be taken into consideration in the absence of proof that the signatories had the authority of the vendors to execute it. In fact the defendants did not even think it worth their while to cross-examine the witnesses of the plaintiffs on these lines, and the point was not urged by way of an argument before the trial court. A perusal of the memorandum of the first appeal shows that no such ground was taken in that court to assail the finding of the trial court in favour of the plaintiffs, although it rested mainly on document Ex. 24 in respect of which the trial court had invoked the provisions of Section 90 of Evidence Act.

Such a point was not even urged at the hearing of the first appeal, for the impugned judgment of the learned District Judge shows that the learned counsel for the appellants raised only two arguments in connection with the application of Section 90 to the document Firstly, it was urged that the document was not an 'out and out sale' because the sum of Rs. 30 on account of the 'mohrana' was not proved to have been paid to the vendors, and, secondly, that the document did not specify the land. Both these points were considered by the learned District Judge and were rejected for the reasons given by him.

It is apparent from a perusal of his judgment that the arguments before him proceeded on the assumption that Ex. 24 had duly been executed in favour of the plaintiffs; and the appellants cannot be allowed to raise a new point, for the first time in this second appeal, that Ex. 24 did 'not bear the signatures of the executants, or that those who signed for them did not have the authority to do so. A careful reading of the memorandum of the second appeal shows that no such grounds have been taken for an appeal to this court also and the learned counsel for the appellants has not cared to ask for leave to raise any new point for consideration. It may be that he has abstained from doing so because of the fact that the appeal was filed almost eight years ago and the limitation had expired long ago. At any rate the learned counsel has not shown any reason, what to say of a good reason, for the failure to raise the point in the courts below. There is therefore considerable force in the argument of Mr. Rastogi, learned counsel for the plaintiffs-respondents, that such a new point should not be allowed to be raised for the first time in this court because it is essentially a question of fact.

Reference may in this connection be made to the decision in Haji Sheikh Bodha v. Babu Sukhram Singh, AIR 1925 All 1 (FB) where Sulaiman, J. expressed the view that such a new question could rot be allowed to be raised at the final hearing. This view has been followed in Mt. Balkaran Singh v. Mt. Dulari Bai, AIR 1927 All 231. Maheshrey Tewari v. Jarbandhan Misir, AIR 1930 All 885 is also a decision to the same effect. The same view has been taken in Birdhichand v. Mt. Kachri Bai, AIR 1946 Nag 135 and Jiwan Shah v. Mt. Fateh Bibi, AIR 1921 Lah 228 cited by Mr. Rastogi. This court has also taken the view that an appellant should not be allowed to raise a new point in this court for the first time in such circumstance, and it will be sufficient to refer to the decisions in Satya Narain v. Balchand, ILR (1954) 4 Raj 905 = (AIR 1955 Rai 59) and Roop Kishore Agarwal v. Kesari Mal, ILR (1959) 9 Raj 938.

7. Mr. Parakh has however argued that the point raised by him is purely a point of law as it relates to the construction of document Ex. 24 and that it should be allowed to be raised in this court for the first time. He has tried to support his argument by reference to Dular Pandey v. Nanda Budhai, AIR 1938 All 396 (FB); Chittoori Subbanna v. Kudappa Subb-anna, AIR 1905 SC 1325, M. E. Moola Sons, Ltd. v. Perin R. Burjorjee, AIR 1932 PC 118 and Ramlaxmi Ranchhodlal v. Bank of Baroda, Ltd., AIR 1953 Bom 50. I have gone through the decisions cited by the learned counsel but they are based on facts which were quite different. In Dular Pandey's case, AIR 1938 All 396 (FB) the point of law which was entertained for the first time in second appeal was based on facts which were held to be proved by the lower appellate court. In Chittoori Subanna's case, AIR 1965 SC 1325 the question sought to be raised was a pure question of law and was not dependant on the determination of any question of fact, while in AIR 1932 PC 118 the question related to the construction of a document or upon the facts either admitted or proved beyond controversy. In the remaining case of Ramlaxmi Ranchhodlal, AIR 1953 Bom 50 the new plea followed as a matter of legal consequence from proved facts. Thus all the cases cited by Mr. Parakh were quite different, inasmuch as the new points which were raised were either based on proved facts or arose out of the construction of the document in question. In the instant case, however, it is a question of fact whether the Panadar-vendors executed and signed document Ex. 24, and as there was no dispute in any of the two courts below that they had signed the document, there was no occasion for the plaintiffs to prove the genuineness of the signatures, or the so-called authority of those who affixed them on their behalf, and a contrary submission cannot be allowed to be raised now at this distance of time. In fact any other view will be prejudicial to the plaintiffs for, if any such dispute had been raised in the trial court, they would have the opportunity of leading other evidence to prove the due execution of the document.

8. For the reasons mentioned above, I am not inclined to allow the defendants-appellants to raise the aforesaid argument for the first time in this court. I have, however, examined the argument on the merits and, as I shall presently show, it is without any substance.

9. A reading of Ex. 24 shows, inter alia, that (i) it purports to have been executed by all the four 'panadars' of the 'pana' of Kishore Singh, (ii) by it they gave the suit land to the transferees for building a house, (iii) the document describes the location and the area of the land, as well as the consideration for the transfer, (iv) it contains a recital that the document had been written to evidence the conveyance of the land to the transferees, (vj the document has been signed at the behest or command of the 'panadars', and (vi) it bears the attestation of Hardeva Sah and Ganga Ram Sah, again at the behest of the Sardars of all the four 'panas'. Dhalji has signed the document at the behest of Rajshri Ugar Singh, Balji has signed at the behest of Rajshri Harjan Singh. Ganga Singh has signed it at the behest of Rajshri Jesaji and so on. To take a typical example, the signature of Ugar Singh is as follows,--

^^dgs jkt Jh mxj flag th ds A n% Harihar Prasad Singh v. Deonarain Pra-sad, AIR 1956 SC 305, Ram Naresh v. Chirkut, AIR 1932 Oudh 227, Mohammad Azim v. Special Manager, Court of Wards, 'Balrampur, AIR 1936 Oudh 170, Ramani Kanta v. Bhimanandan Singh, AIR 1924 Cal 82 and Kalika Prasad Ojha v. Mt. Jhenjbo Kuer, AIR 1964 Pat 241 in support of his argument. There is, however, no substance in this argument.

12. As has been stated, a perusal of document Ex. 24 shows that it is a deed of transfer of land which has been executed on behalf of all the four 'panadars' of the 'pana' of Kishore Singh, in favour of the transferees. The only thing is that instead of signing the document himself, each one of the executants asked a named person to sign it for him. Thus, Dhalji signed it at the behest of Ugar Singh, Balji signed it at the behest of Harjan Singh, Gangsingh signed it at the behest of Jesa etc.

One Dhonkal affixed the signature of Ram Singh under his own pen. Such is the nature of the signatures. But the fact nonetheless remains that the document clearly shows that each of the persona who physically signed it, did so at the express behest of one or the other of the executants named by him. It is also apparent that while affixing their signatures on behalf of the executants, those who signed the documents made it quite clear that they did so at the behest of the particular executants named by them. The pattern of the signatures, such as it is, goes to show clearly that it was only the ministerial act of physically signing the document which was discharged by others, and that too under the direct supervision of the executants and at their express behest or command. In fact and substance, therefore, the document must be held to have been signed by the executants, and there is no reason why a presumption under Section 90 of the Evidence Act should not be raised in respect to it. This conclusion becomes all the more irresistible when it is remembered that the document bears the attestation of the two persons mentioned above, namely, Hardeva Sah and Ganga Ram Sah, and that attestation again purports to have been made at the behest of the Panadar-executants themselves.

13. The argument that the performance of even the ministerial act of signing the document smacks of authorization similar to that in the case of an agent or the holder of a power of attorney, is quite futile, because the execution of a document by an agent or power of attorney-holder stands on quite a different footing and is of course not covered by the presumption provided for in Section 90.

14. I have gone through the cases cited by Mr. Parakh but they have no bearing on the precise point which arises for consideration in this case, and were based on different facts. In Harihar Prashad Singh's case, AIR 1956 SC 305 the documents were signed by Chulai Mahto, an agent, and there was no proof that he was an agent. Their Lordships of the Supreme Court therefore held that Section 90 of the Evidence Act did not authorize the raising of a presumption as to the existence of authority on the part of the agent to represent the mortgagors. In Ram Naresh Singh's case, AIR 1932 Oudh 227 the deeds in question did not purport to have been signed or even marked by the executants and it was not known in whose handwritings there were some Hindi writings thereon. That case was therefore vastly different and the decision was based on its peculiar facts. Mohammad Azim's case, AIR 1936 Oudh 170 was based on the decision in Sheo Nandan Ahir v. Ram Lagan Singh, 13 All LJ 921=(AIR 1915 All 393 (2)) which was overruled in the Full Bench decision in AIR 1925 All 1 (FB) to which I shall refer a little later. In AIR 1924 Cal 82 the signature was of an 'ammukhtar' and this is why it was held that his authority as such had to be proved and could not be presumed under Section 90 of the Evidence Act. The decision in Kalika Prasad Ojha's case, AIR 1964 Pat 241 does not refer to the contrary view which had been taken in a number of cases and, with all respect to the learned Judges who decided it. I find it difficult to follow it.

15. The view which I have taken above finds support from the Full Bench decision in AIR 1925 All 1 (FB). In that case the question was whether the presumption permitted by Section 90 of the Evidence Act in the case of a document purporting to be thirty years old, that it was duly executed by the party by whom it purported to be executed, included the presumption that when the signature of the executant purported to have been made by the pen of the scribe, the latter was duly authorized to sign for him. The question was referred to a Full Bench and was answered in the affirmative. It was a case in which the signature of an executant had been affixed by the hand of scribe, but it was held that the document purported to have been executed by the executant by the pen of the scribe so as to attract a presumption under Section 90. With all respect to the learned Judges who decided that case, it appears to me that this is the correct view of the law, and it has been followed in Bhairon Prosad v. Ablak Singh, AIR 1934 All 529.

16. The question whether the presumption of due execution provided for in Section 90 of the Evidence Act should be raised in a case where the ministerial act of physically signing the document has been left to another person, should really be decided on a consideration of all the facts and circumstances. As I have stated, in the present case document Ex. 24 purports to be a deed of transfer executed by all the four 'panadars' of the 'pana' of Kishore Singh, in favour of the transferees. The land so transferred and its boundaries have been described in the document, and so also the consideration for the transfer. The document clearly states that it was written and executed to evidence the conveyance of the land mentioned in it, to the transferees. But instead of signing the document themselves, each one of the executants asked another person to sign it for him and the persons who signed it expressly stated that they did so at the behest or command of the individual executant mentioned by each one of them.

To this effect the document bears the attestation of the two witnesses who categorically noted in the document that they had attested it at the behest of the 'panadars' of all the four 'panas'. All these facts and circumstances fully justify the raising of a presumption under Section 90 of the Evidence Act in respect of the document. Then there is satisfactory evidence to show that the transferees paid 'nalbandi' and the receipts in that connection are Exs. 20 to 22 and 26 to 30 for the period S. 1976 to S. 2009. Besides, the courts below were satisfied that a compound wall had been erected and that the plaintiffs had raised a dispute to protect the land when there was an encroachment on it as evidenced by Ex. 12 of S. 1936. I have therefore no hesitation In overruling the argument of Mr. Parakh, for two courts below were quite justified in applying Section 90 of the Evidence Act to document Ex, 24.

17. As has been mentioned, Mr. Parak has raised another argument that Ex. 24 is not a sale-deed at all. But as Mr. Rastogi has rightly pointed out, no such point was raised in the lower appellate court for, as has been mentioned earlier, only two points were made in that court regarding Ex 24 and none of them related to the question that it was not a sale-deed. What was urged in the lower appellate court was that it was not an out and out sale because the amount of the 'Mohrana' was not proved to have been paid to the vendors, and the 'patta' did not specify the land in question. There is therefore no justification for raising a new point in second appeal. The point cannot in fact be raised even on the ground that it relates to the construction of the document (Ex. 24) for it clearly contains the recital that the transferors had given the land specified In the document, to the transferees, for the construction of a house, on the payment of 'mohrana' as well as 'jhunpri' and 'lag'.

The document, in fact and substance, is therefore a sale-deed in favour of the vendees. It is common knowledge that In the area where the land in question Is situated, the 'jagirdars' or 'bhomins' were not allowed to make an out and out sale of the land for ever, and they used to disguise the alienations by taking resort to the type of language used in Ex. 24. As a matter of fact defendant Gulzari Lal has claimed the ownership of the suit land by calling Ex. A-l as a sale-deed and that document is quite similar to Ex. 24. I have no doubt that the submission of Mr. Parakh that Ex. 24 is not a sale-deed in favour of the plaintiffs, is quite; unjustified.

18. Mr. Parakh has raised the further argument that the suit land did not belong to the 'pana' of Kishore Singh and that it could not at all have been sold by the 'panadars' of that 'pana' under document Ex. 24. The learned counsel has, in this connection, tried to argue that the parol evidence on this point has been misread by the learned District Judge. The appellants did not, however, take an express plea in the grounds of their appeal that the evidence had been misread on any particular point or points and, as has been held by this court in Ratan Lal v. Shri Mandir Sweetambar Jain, (1959) 1959 Raj LW 183, the point cannot be allowed to be raised for the first time in second appeal. The two courts below have considered the evidence at length, and it has, in fact, not been shown that there has been any misreading thereof. What Mr. Parakh has submitted is that plaintiff, Bhagwati Prashad P. W. 10 went to the extent of denying the existence of 'bera Bhadwala' when at one place he had admitted the existence of such a 'bera'.

The argument is not really correct because it appears that while the witness admitted the existence of 'bera' Bhadwala, he denied the existence of 'bera' Bhadwala, and there was no contradiction in his statement So also, there is no contradiction in the evidence of the witness regarding the construction of a boundary wall, for the alleged contradiction relates only to the eastern wall, close to the house of Maoji Ram. The only other witness whose evidence is alleged to have been misread, is Geegla P. W. 5. Mr. Parakh has tried to show that the witness had admitted that the suit land belonged to Hanuman Singh and Sugan Singh from whom the defendants had purchased it under Exs, A-l and A-2. This attempt is also futile because the trial court has given reasons for rejecting this part of the statement of Geegla and, after reading his evidence as a whole, I am not inclined to read any portion of it in favour of the defendants-appellants.

19. The only other point urged by Mr. Parakh is that based on the view taken in Madanlal v. Durgadutt, 1957 Raj LW 441 = (AIR 1958 Raj 206) that where a plaintiff sues for possession of property which is in the occupation of another and bases his suit on title and also alleges dispossession or discontinuance of possession, the plaintiff will not be entitled to succeed merely by proving title and he must, in addition, prove that he has been in possession of the property within 12 years of the suit. These observations were made with reference to the scope of Art, 142 of the first schedule of the Indian Limitation Act and they are of no avail to the appellants because the two courts below have given adequate reasons for taking the view that the plaintiffs were in possession of the suit property and were dispossessed on the date mentioned by them.

20. No other point remains for consideration and the appeal is dismissed with costs.