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2018 DIGILAW 92 (ORI)

Prafulla Kumari Pradhan v. Trinath Swain

2018-01-17

A.K.RATH

body2018
JUDGMENT : A.K. RATH, J. Plaintiff is the appellant against a confirming judgment in a suit for recovery of possession and in alternative for declaration of title over schedule ‘B’ property. 2. The case of the plaintiff is that one Govinda Pradhani is the owner of ‘A’ and ‘B’ schedule property. He purchased the same from three brothers, namely, Mukunda, Mongulu and Indra by means of a sale deed dated 13.10.1954, vide Ext.3, for a consideration of Rs.90/-. Possession has been duly delivered to him. Govinda Pradhani sold the property to his daughter-in-law, the plaintiff by means of a registered sale deed dated 9.11.1987, vide Ext.1. The plaintiff is in possession of the suit land. A portion of the property i.e., ‘B’ schedule was let out to the defendant. The defendant defaulted in payment of rent. With this factual scenario, she instituted the suit seeking the relief mentioned supra. 3. The defendant filed a written statement pleading inter alia that Govinda Pradhani is his maternal grandfather. His mother had purchased the entire property for a consideration of Rs.90/-in the year 1954 from the original owners, namely, Manguru, Mukunda, Mongala and Lalita Siva. It was an oral sale. He is in possession of the suit property. Neither Govinda nor the plaintiff has any right over the suit property. 4. Stemming on the pleadings of the parties, the learned trial court framed seven issues. Both parties led evidence, oral and documentary, to substantiate their case. Learned trial court held that Govinda Pradhani had no title over the suit land. Delivery of possession had not been made to Govinda Pradhani. Thus, the plaintiff could not derive any title under Ext.1. It further held that the defendant was not inducted as a tenant. Held so, it dismissed the suit. The unsuccessful plaintiff filed appeal before the learned District Judge, Jeypore, which was subsequently transferred to the court of the learned Civil Judge (Sr.Division), Jeypore and renumbered as T.A.No.5 of 1992 (T.A.No.20/92). The appeal was eventually dismissed. 5. The Second Appeal was admitted on 18.3.1996 on the following substantial question of law: “Whether the courts below have committed illegality in their interpretation of Ext.3, dated 13.10.54, keeping in view the provision of Section 90 of the Evidence Act.” 6. The appeal was eventually dismissed. 5. The Second Appeal was admitted on 18.3.1996 on the following substantial question of law: “Whether the courts below have committed illegality in their interpretation of Ext.3, dated 13.10.54, keeping in view the provision of Section 90 of the Evidence Act.” 6. Heard Mr.P.V.Balkrishna, learned Advocate assisted by Mr.Ranjan Kumar Rout, learned Advocate for the appellant and Mr.Manoj Kumar Ojha, learned Advocate on behalf of Mr.Tarananda Pattnaik, learned Advocate for the respondent. 7. Mr.Balkrishna, learned Advocate for the appellant submits that the sale deed dated 13.10.1954, vide Ext.3, is thirty years old document. The same was produced in the court from the custody of the plaintiff. Thus, presumption under Section 90 of the Indian Evidence Act, 1872 can be drawn. Elaborating the submission, he submits that Ext.3 being a document of title, which is thirty years old, the execution is to be presumed and the contents must go down as admission of the executants as contained under Section 90 of the Evidence Act. He further submits that the plaintiff purchased the suit property by means of a registered sale deed, vide Ext.1 and constructed a house and is residing therein. Both the courts below committed a manifest illegality in holding that delivery of possession was not made. 8. Per contra, Mr.Ojha, learned Advocate for the respondent submits that both the courts below concurrently held that there was no delivery of possession of the suit property to Govinda Pradhani. Govinda Pradhani had no right to alienate the suit property in favour of the plaintiff. 9. Reliance placed on Sec.90 of the Indian Evidence Act is totally misplaced. Section 90 of the India Evidence Act, 1872 provides that 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. On a bare perusal of the said provision, it is evident that the presumption is available to the signature, execution or attestation of a document. On a bare perusal of the said provision, it is evident that the presumption is available to the signature, execution or attestation of a document. The presumption does not extend to correctness of statement, contents of the document or that it had been acted upon. 10. On a threadbare analysis of the evidence on record and pleadings, both the courts concurrently held that delivery of possession was not made to Govinda Pradhani. Thus, Govinda Pradhani had no title over the suit property. He had no right to alienate the land in favour of his daughter-in-law, the plaintiff. Successive alienations will confer any title on the plaintiff. There is no perversity or illegality in the findings of the courts below. The substantial question of law is answered accordingly. 11. The logical sequitur of the analysis made in the preceding paragraphs is that the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.