Research › Search › Judgment

Jharkhand High Court · body

2004 DIGILAW 936 (JHR)

Nathuni Ram v. Raghupat Ram

2004-09-14

VIKRAMADITYA PRASAD

body2004
JUDGMENT Vikramaditya Prasad, J. 1. The only substantial question to be answered in this appeal is "Whether the Court of appeal below wed ill law in rejecting plaintiffs claim over 14 decimals out of total 36 decimals land of plot No. 51. when raiyati settlement obtained in 1342 Fasli was not negatived". No liberty was given to urge any other question and for that, no other question has also been raised. 2. The question aforesaid arose out of the short fact that the plaintiffs father got 0.76 acres and 0.36 acres of land in plot No. 11 and 51 respectively as gairmanzarua malik land and thereafter there was a partition between the two brothers and plaintiff and in his portion, the plaintiff raised a house and inducted the defendants as tenants. Subsequently, the plaintiffs name was also mutated in L.R.D.C. record and substantial Jamabandi was opened. The Jamabandi was opened in the name of the defendants which was beyond the jurisdiction and therefore, the plaintiff tiled the suit for declaration of his title and for confirmation of his possession over the land over plot No. 51 measuring 36 decimals appertaining to Khata No. 80 of village Japla-Dharhara, District. Palamau. 3. The defendants case was that he purchased the land in the year 1962; then his name was mutated with the Government of Bihar and he denied that at any time, the plaintiff had obtained any hukum-nama under which the plaintiff claims his title. 4. The learned trial Court framed many issues and one of the issues, i.e., the issue No. 5 was "Whether Gulab Ram, the father of the plaintiff acquired title and possession over the suit land by virtue of alloyed settlement made by ex-landlord and thereafter constructed a Small house over if"? The learned trial Court, on appreciation of evidence, found the followings :- (i) Ext. 3, which is a hukumnama, is not a registered document and therefore. it cannot be used as evidence of title but for collateral purpose, (ii) there was only one rent receipt issued by the ex-landlord, (iii) there was no returns filed by the ex-landlord at the time of vesting and (iv) copy of the Bujharat register has not been filed on behalf of the plaintiff to show his title. The learned trial Court relied on a decision reported in 1969 PUR 3. The learned trial Court relied on a decision reported in 1969 PUR 3. The learned trial Court, therefore, held that it was not the genuine settlement and consequently dismissed the suit. 5. The learned appellate Court vide the Impugned judgment, did not frame any particular point for determination but adopted the issues which have been framed by the learned trial Court and considered the Issue No. 5 and 6 as framed by the learned trial Court. It came to hold that mutation is only a circumstance and it was not a circumstance of title and consequently it rejected the claim of the defendant-respondent. It was also found that the settlement was 13 years old and it was produced from the custody of the plaintiff. H also found that demand was opened in the name of Raghunath in Register II at page 200. But on the basis of the appreciation of the position, he gave the finding that the defendant has got possession over the 14 decimals of land. though the learned appellate Court did not give any finding with regard to the settlement deed, Ext. 3. 6. It appears that the learned appellate Court, did not in specific points, but as per the findings given by it, acted under Section 90 of the Evidence Act and accepted the settlement deed, Ext. 3, which was disbelieved by the learned trial Court. The gist of Section 90 of the Evidence Act is as follows :- "Gist of the Law in Section 90.-(1) The presumption applies to documents proved to be 30 years old or more, (In the State of Allahabad the period has been reduced to 20 years by U.P. Act No. 24 of 1954 ante). (2) The document must come from "proper custody". (3) The presumption is discretionary and so where a document is suspicious on the face of it or mutilated, the Court may refuse to make it. It may call upon the party to offer other proof. (4) The presumption applies only to documents which bear the signature of the writer or of witnesses, and not to unsigned or anonymous papers. (5) The presumption relates only to the signature, execution or attestation of a document, i.e., to its genuineness. It does not involve any presumption that its contents are true or that they have been acted upon. (4) The presumption applies only to documents which bear the signature of the writer or of witnesses, and not to unsigned or anonymous papers. (5) The presumption relates only to the signature, execution or attestation of a document, i.e., to its genuineness. It does not involve any presumption that its contents are true or that they have been acted upon. The presumption does not also apply to the authority of a person to execute a document on behalf of another. (6) The presumption applies to execution and attestation of wills including that of sound disposing mind of testator. (7) 30 years is to be counted from the date the document purports to bear. Although a document may not be 30 years old when it is filed, it is sufficient if it is so when the case is tried. (8) The presumption applies to the original document and not to any copy, certified or otherwise. (In Allahabad it has been made applicable to the certified copy of an ancient document)." 7. Undisputedly, the Ext. 3 does not bear any signature of any body, executor, ascriber or of any attestator. The question is whether, in the aforesaid circumstances even though the document is said to be 30 years old and coming from the proper custody, that document can be admitted Into evidence. The presumption is that it was duly executed by the person, who has signed over it but there is no signature of the person executing the document, then the very soul of Section 90 is wanting and consequently, merely because the document was 30 years old and produced from a custody cannot be there. Presumption permissible relates to the signature, execution or attestation of a document, i.e., to its genuineness. Thus, the signature not having been proved or even handwriting having been proved of anonymous. Ext. 6 the deed, Ext. 3. anonymous document, cannot be affected presumption under Section 90 (AIR 1956 AP 81; AIR 1918 Pat 537). In that view of the matter, Ext. 3, Is not admissible document even for collateral purposes foe the simple reason that no presumption can raised under Section 90 of the Evidence Act or even under Section 156 of the Evidence Act, presumption cannot be used for its execution. In that view of the matter, Ext. 3, Is not admissible document even for collateral purposes foe the simple reason that no presumption can raised under Section 90 of the Evidence Act or even under Section 156 of the Evidence Act, presumption cannot be used for its execution. Thus, the learned trial Court has rightly discarded this document and it dismissed the suit on the ground that no title can pass upon this document. Ext, 3. Learned appellate Court made an apparent error of passing the-appellate Judgment without having negatived this presumption. The question framed is answered accordingly. The appeal is allowed, The first appellate judgment is reversed and that of the learned trial Court is confirmed.