JUDGEMENT Kuldeep Chand Sood, J. (Oral) - 1. This second appeal arises out of the judgment and decree of the learned Additional District Judge, Solan, dated 31st March, 1998 in Civil Appeal No. 39-S/13 of 1997. 2. Plaintiff filed a suit for permanent injection against the defendants seeking to restrain the defendants from cutting, removing any tree from the suit land and changing the nature of the suit land in any manner either by raising construction or by way of making excavations, digging or causing any type of damage to the suit property and from converting Tuni tree into timber and removing it from the suit property. 3. The case of the plaintiffs: - 4. On 23rd April, 1995, defendant No. 1 Daya Nand, without any right; started cutting Tuni tree from a portion of the suit land and started converting the tree, so felled, into timber. Plaintiff asked the defendants not to do so as the land was joint between the parties and defendants have no right to exclusively appropriate to themselves any part of the joint property or cut the tree or change the nature of the land. 5. Defendants resisted the suit. Allegations were controverted. The defendants set up a case that they are in possession of the suit land persunt to a private settlement / partition which took place 12 years back. It was the case of the defendants that the parties are in possession of their respective shares which came to them in partition. Defendants have developed the land in their possession including suit land after spending huge amount. 6. Learned trial court settled the following issues for determination: 1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction? OPP. 2. Whether the suit land was already partitioned among the coshares in the family partition, as alleged? OPD. 3. Whether the defendants are in exclusive possession of the suit land, as alleged? OPD. 4. Relief. 7. Learned trial court negative the plea of partition of the joint property amongst the co-shares in a family arrangement or that defendants were in exclusive possession of the suit land as claimed by them. Plaintiffs suit was decreed. 8. Dissatisfied, defendants carried an appeal before the learned District Judge, which too was dismissed by the learned Additional District Judge, Solan, by impugned judgment and decree. Still aggrieved, defendants are in second appeal. 9. Plaintiffs suit was decreed. 8. Dissatisfied, defendants carried an appeal before the learned District Judge, which too was dismissed by the learned Additional District Judge, Solan, by impugned judgment and decree. Still aggrieved, defendants are in second appeal. 9. This appeal was admitted on 10th March, 1999 on the following substantial questions of law: 1. Whether the courts below have acted illegally by ignoring exhibit DW-1/A, whereby land in suit was partitioned? 2. Whether exhibit DW-1/A writing of private partition being more than 30 years old carries presumption that the same bears signatories of the parties and attesting witness and that this document was duly executed and attested by persons who are signatories to same and therefore, on the basis of this document, land in question has been partitioned? 3. Whether the family partition having been acted upon a long period, disentitled the plaintiff to claim decree of injunction? 4. Whether the plaintiffs having alternative and efficacious remedy by way of seeking partition and recovery of the value of their share in the tree could not be granted discretionary relief of injunction? 5. Whether the courts below have exercised the jurisdiction which was not lawfully vested in them and decree of injunction could not be passed against a cosharer as per the claim of the plaintiffs and owner of land which cannot be restrained from carry out digging, excavation work in the process of agriculture operation? 6. Whether the presumption of truth attached to entries in revenue record are amply rebutted on the basis of oral and documentary evidence especially Ex. DW-1/A? 7. Whether the appellants could not be restrained from converting timber of Tuni tree and respondents could be adequately compensated? 8. Whether the findings by both the courts below are vitiated for want of proper appreciation and consideration of the pleadings and evidence on record? 10. At the outset Mr. Jishtu, learned counsel for the defendants, submits that no substantial question of law arises in this appeal and the appeal is liable to be dismissed on that ground alone. 11. On the other hand, Mr. Verma, learned Senior Counsel for the appellant, urges that the judgment of the courts below is based on no evidence. Document evidencing the partition, which was more that 30 years old, was ignored by both the courts. This document Ex. 11. On the other hand, Mr. Verma, learned Senior Counsel for the appellant, urges that the judgment of the courts below is based on no evidence. Document evidencing the partition, which was more that 30 years old, was ignored by both the courts. This document Ex. DW-1/A shows that there was a partition of the joint properties between the parties. Another argument raised by the learned counsel is that that plaintiffs were not entitled to the relief of injection against the co-owner who was in possession of the land subject matter of dispute. Question No. 1,2,3,6 and 8. 12. Mr. Verma strenuously urges that defendants have proved on record the factum of private partition between the predecessor-in-interest of the parties are in separate possession of their respective shares of the suit property from the date of partition. Mr. Verma contends that defendants have proved the factum of private partition by oral evidence and partition deed Ex. DW-1/A, which evidence was not considered by the courts below. 13. So far oral evidence on record is concerned, both the trial court and first appellate1 court have discussed the evidence in length. Learned trial court after discussing the oral evidence of the plaintiffs and the defendants, particularly evidence of Ram Prakash, defendant (DW-1), Shankar Dyal (DW-2) and Mohan Dass (DW-3) came to the conclusion that the suit property is joint between the parties and not partitioned. So far documentary evidence is concerned, he particularly referred to the Jamabandi Ex. P-1 which shows that the land was joint between the parties. Learned trial court found that defendants could not dislodge the presumption of truth attached to this revenue record. The trial court concluded,1 "plaintiffs have proved on record that suit land is joint and defendants have no right to change its nature, raise any construction or do any excavations and nature, raise any tree till it is legally partitioned." In appeal learned Additional District Judge re-appreciated the evidence on record particularly the document himself admitted in the cross-examination that the land in dispute is still joint between the parties. He also referred to the joint between the parties. He also referred to the evidence of Shankar Dyal (DW-2), witness of the defendants, and noticed that this witness expressed his ignorance about the joint ness of the land between the parties in village Chabag. He also referred to the joint between the parties. He also referred to the evidence of Shankar Dyal (DW-2), witness of the defendants, and noticed that this witness expressed his ignorance about the joint ness of the land between the parties in village Chabag. Learned first appellate court noticed that no information or report was made to the patwari about the private partition. He also found that the contention of the defendants, that parties were in possession of their respective shares, is not supported by any evidence. Referring to Jamabandi for the year 1991-92 (Ex. P-1) learned first appellate court observed that parties are recorded in joint possession of the suit property to which presumption of truth is attached. 14. Mr. Verma took me through the evidence. It is significant to note that Ram Prakash defendant appearing as DW-1 merely stated that he is owner of the disputed property to which presumption of truth is attached the area in possession of their respective shares which came to them in partition. According to him, partition deed was prepared which he produced from his pocket which was exhibited as DW-1/A. He did not say what land fell into the share of the plaintiffs. He merely stated that Hari Nand, predecessor-in-interest of the plaintiffs, had mortgaged his land with Prem Singh, Surender Singh, Jeet Ram etc. and that the plaintiffs live in village Cheog which is 8-10 kilometers from the disputed land. In cross examination this witness categorically admitted that the land in dispute is still joint between the parties. He also admitted that factum of partition was not reported to the revenue authorities nor it was got recorded anywhere else. Shankar Dyal, other witness of the defendants, stated that parties are in possession of their respective shares for the last 50to55 years. In cross-examination he admitted that the disputed property may be joint between the parties. He admitted that he is not on talking terms with the plaintiffs. He is also unable to state if there is joint land of the parties in village Cheog. Evidence of DW-3 too does not improve the case of the defendants. He also stated that parties are in possession of their respective shares. He did not speak about any partition. 15. So far the document of partition is concerned, it is not proved on record. Mr. Evidence of DW-3 too does not improve the case of the defendants. He also stated that parties are in possession of their respective shares. He did not speak about any partition. 15. So far the document of partition is concerned, it is not proved on record. Mr. Verma, learned Senior Counsel for the defendants, submits that document of partition Ex. DW-1/A is more than 30 years of old and therefore there is a presumption that this document was executed between the predecessor-in-interest of the parties. Hindi translation of the document has been filed. This document is not signed by Hari Nand, predecessor-in-interest of the, plaintiffs. 16. Mr. Verma refers to Munna Lal (Dead) by LRs ETC. Vs. Suraj Bhan and others, AIR 1975 SC 1119 and submits that merely because the document of private would not mean that there was no partition or the document is not binding on the opposite party.. 17. In, Munna Lal, it was found that the partition was effected by a Panch and the conduct of the parties subsequent to this partition indicated that arrangement effected under the guidance of the Panch was mutually accepted and acquiesced by the parties. The partners, after partition, started looking after their respective properties separately. It is in this context that the Apex Court observed that merely because the memorandum of parties did not contain the signature by one of the defendants would not invalidate the partition. In that case memorandum of partition was proved on record. In the present case, the so called memorandum of partition or private settlement Ex. DW-1/A is not proved by any of the witness, even defendant Ram Prakash admits that this instrument was not executed or scribed in his presence. 18. It is true that, under Section 90 of the Indian Evidence Act where a document purports to be or proved to be thirty years old and is produced from proper custody, then the court may presume that the signature and other part of such document, which purports to be in the handwriting of any particular person, is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be executed and attested. 19. 19. It is now well settled that extent of presumption, under Section 90 of the Evidence Act, relates only to signature and I handwriting and cannot be extended to correctness of the contents of j the document. Section 90 merely dispenses with the proof of the document as required under Section 67 and 68 of the Evidence Act, but the contents of the document have to be proved for leading appropriate evidence. (See Ghurahu and others vs. Sheo Ratan and others, AIR 1981 SCAII.3). 20. As pointed out in Ramji Dayawala & Sons (P) Ltd. Vs. Invent Import, AIR 1981 SC 2085, mere proof of the handwriting of a document would not amount to the proof of all the contents of the facts stated in such document, particularly when the facts stated in the document have to be proved by admissible evidence. There is not an 4 iota of evidence on record as to the contents of document Ex. DW-1/A J which purports to be memorandum of partition. Reference may also be made to Mohinuddin and another vs. Presnet, Municipal Committee, Khargone, AIR 1993 MP 5. This apart a document, to entitle presumption under Section 90, must come from a proper custody. i\ Defendant Ram Prakash appearing as DW-1 does not say a word how he came to be in custody of this document. In the circumstances, no presumption under Section 90 can be raised in respect of the" so called memorandum of partition Ex. DW-1/A. The concurrent findings of both the courts below that the defendants have not been able to prove private partition of the suit property cannot be faulted with which is « supportable by evidence on record. This court, in second appeal, will ] not re-appreciate the evidence even if another view possible. Question No. 4,5 and 7. 21. Mr. Verma, learned Senior Counsel for the appellants, in the end urges that the present suit for permanent injunction was not maintainable as alternate remedy was available with the plaintiffs to have the su9it land partitioned. 22. Mr. Jishtu, learned counsel for the respondent-plaintiffs, counters that this plea was not raised either before the trial court or before the first appellate court and therefore, it is not available to the defendants at the stage of second appeal. 23. It is true that there is no foundation laid for this plea in the written statement filed by defendants. Mr. Jishtu, learned counsel for the respondent-plaintiffs, counters that this plea was not raised either before the trial court or before the first appellate court and therefore, it is not available to the defendants at the stage of second appeal. 23. It is true that there is no foundation laid for this plea in the written statement filed by defendants. No objection was taken by the defendants that the present suit was not maintainable or that there was an equally efficacious remedy available to the plaintiffs. The substantial questions of law, it is now settled, must emerge from the pleadings and from the findings of fact arrived at by courts. A point which has no foundation in the pleadings and was not raised before the trial court-or the first appellate court cannot be permitted to be raised before the High Court in second appeal. The Apex Court, in Santosh Hazari vs. Purushottam Tiwari (Deceased) by LRs, (2001) 3 SCC 179, observed that a question to be "substantial" question of law must be debatable, not previously settled by law of the land or binding precedent and must have a material bearing on the outcome of the case so far the rights of parties are concerned, Their Lordships observed: "To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of facts and it must be necessary to decide that question *of law for a just and proper decision of the case" • 24. This apart, though it is true that a co-owner who is not in possession of any part of the common property is not entitled to seek an injunction against another co-owner who have been in .exclusive possession of a common property unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse to the interest of co-owner out of possession. In the present case the very fact that defendants plead their exclusive ownership in respect of the joint property entitles the plaintiffs to seek injunction-against the: defendants-co-owners from appropriating the property exclusive to themselves. (See: Bachan Singh vs. Swaran Singh, 2000 (2) S.L.J. 1773). 25. In the present case the very fact that defendants plead their exclusive ownership in respect of the joint property entitles the plaintiffs to seek injunction-against the: defendants-co-owners from appropriating the property exclusive to themselves. (See: Bachan Singh vs. Swaran Singh, 2000 (2) S.L.J. 1773). 25. In P. Lakshi Reddi V. Lakshmi Reddy, AIR 1957 SC 314, the Apex Court held that the possession of a co-heir is considered in law as possession of all the co-heirs. When one co-heir is found in possession of the property, it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heirs, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs title. 26. Mr. Verma relying upon Sunil Kumar and another v. Ram Prakash and others, AIR 1988 SC 576, contends that a co-sharer | cannot maintain a suit for permanent injunction restraining other co- f heirs from enjoying the suit. 27. In Sunil Kumar what was held was that a suit against a Karta of a joint family for restraining him from alienating the property for legal necessity is not maintainable because the coparcener has a remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale. The ratio of the case is of no assistance to the appellants. 28. The questions are, accordingly, answered. 29. For the reasons recorded above, I find no substantial question of law is involved in this appeal. There is no merit in the appeal. The same is dismissed. No order as to costs. -