Allahabad High Court
Mahabir vs State on 7 July, 2011
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
(Judgment reserved on 04.04.2011)
(Judgment delivered on 07.07.2011)
Case :- WRIT - C No. - 13416 of 1991
Petitioner :- Mahabir and others
Respondent :- State
Petitioner Counsel :- H.S. Srivastava,Anand Kumar,Kirti Kumar Singh
Respondent Counsel :- S.C.
Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the petitioners and learned standing counsel for the respondents. This writ petition was filed by five petitioners. Petitioner no.1 has died and has been substituted by his legal representative. Each petitioner claimed that he was tenure holder of different agricultural plots since the time of Zamindari Abolition (some of the petitioners claimed that prior to them their fathers were tenure holders). The plots in question were included in notification issued under Section 4 of the Forest Act in the year 1968 proposing to declare certain areas as reserve Forest. Petitioners filed objections under Section 6/9 of the Forest Act on 15.03.1985 claiming that they were not aware of the gazette notification of 1968 under Section 4 of the Forest Act. Each petitioner claimed that he (or his father) was in possession with the consent of the Zamindar since before Zamindari abolition. However, no one's name was ever entered in the revenue record. Forest Settlement Officer(F.S.O.) allowed their objections on 24.03.1989 by accepting the receipts filed by the petitioners alleged to have been issued by the Zamindar. For the said purpose F.S.O. placed reliance upon Section 90 of Evidence Act.
Against the orders passed by the Forest Settlement Officer appeals were filed before District Judge, Mirzapur. The copies of alleged receipts have also been filed as Annexure 9 to 13 to the writ petition. The receipts are for fasli years 1357, 1358 and 1359 i.e. from 1.7.1949 to 30.06.1952. The appeal against petitioner no.1 was numbered as appeal no.72 of 1989 State of U.P.(Forest Department) Vs. Mahavir and was allowed on 06.02.1991. Order of the F.S.O. dated 24.03.1989 was set aside and objection of Mahavir was rejected. The other appeals were numbered as 67 of 1989 against Dukhi, 65 of 1989 against Ramkishore, 80 of 1989 against Vishwanath and 77 of 1989 against Mohan. All the appeals were allowed for the same reasons on the same date by IV A.D.J. Mirzapur.
The lower appellate court under issue no.1 held that no objector until the date of his evidence before F.S.O. had either filed the receipt or indicated the name of the zamindar or had filed the alleged patta. Each objecion only stated that Zamindar had executed patta in his favour. Alleged receipts were filed after conclusion of the evidence of the objectors before F.S.O. There was no mention of the receipt in the written objection or in the oral statement. The appellate court held that receipts were forged and manufactured for the purpose of the case.
Section 90 of the Evidence Act is quoted below:
"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 hand writing of any particular person, is in that person's hand writing, and in the case of document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested."
Through U.P. amendment of 1954 the words "thirty years" have been changed to "twenty years".
A full bench of this court reported in Ram Jas and others Vs. Surendra Nath and another AIR 1980 All. 385 has held that even if a document is basis of the suit on the defence, or has been mentioned in the plaint or the written statement, still in appropriate cases presumption under section 90 may be drawn.
As the very fact as to whether the receipt was issued or not was in issue, it could not be decided on the basis of presumption alone. In any case the presumption is rebuttable. There was absolutely no explanation by the petitioners that why after Zamindari abolition they did not get their names mutated in the revenue records. Pattas were not filed. No reference to receipts was made in the oral statements and the objections. Receipts were not even filed until conclusion of the evidence of the petitioners before F.S.O. No evidence was adduced that the executant of the receipt was authorised to execute the receipt. Neither in the written objection nor in the oral statement the name of the Zamindar was mentioned. Absolutely, no explanation was given that why in the year 1947 when alleged receipts were issued, names of the persons concerned were not recorded in the revenue record.
The lower appellate court rightly held that receipts were forged and manufactured for usurping the property of more than 100 bigha in total. Section 90 Evidence Act has got no application when the allegation is that the document is forged.
A person can not be permitted to forge a document ante date the same to about 20 or 30 years and then place reliance upon Section 90 of the Act. This section is not a licence for double fraud; one for manufacturing a document and the other for ante dating the same. If the view taken by the F.S.O. is approved then any person in U.P. can claim any Zamindari agricultural land at any time by just forging a receipt by Zamindar and ante dating that to prior to 1950 A.D. or by obtaining receipt from Zamindari after 20,30 or more years of abolition of zamindari and ante dating that to a date prior to Zamindari abolition.
Accordingly, there is no error in the judgment and order passed by the learned A.D.J.
Writ petition is, therefore, dismissed with damages for use and occupation quantified at Rs.1000/- per acre per year for twenty years (the period during which this writ petition remained pending). These damages shall be realised like arrears of land revenue.
Order Date :- 7.7.2011
vkg
