Kedar And 3 Ors. vs Gobari
2013 Latest Caselaw 5095 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 9.5.2013
 
                                                                                                               Delivered on 16.8.2013
 
Case :- SECOND APPEAL No. - 534 of 2013
 
Appellant :- Kedar And 3 Ors.
 
Respondent :- Gobari
 
Counsel for Appellant :- Anil Sharma,Ramesh Kumar Shukla
 
Counsel for Respondent :- Pradeep Kuamr Vi
 

 
Hon'ble Mrs. Sunita Agarwal,J.

This is defendant second appeal. Plaintiff filed suit for permanent injunction against the defendant with regard to suit property which was registered as original suit no. 318 of 2003.

The plaint case is that property shown in the map annexed along with plaint under item (Aa) and Item (Ba) shown by letters Ka, Kha, Ga, Gha and Cha, Chha, Ja and Jha belongs to the plaintiff and defendants are trying to interfere in the possession of the plaintiff. The plea set up in the plaint is that suit property mentioned at item no. (Aa ) and item no. (Ba) in the plaint map was purchased by two registered sale deeds dated 15.4.1971 and 20.1.1967; respectively. Plaintiff was put in possession of the property in dispute from the date of the sale deeds. The defendants have no concern with the suit property. On 1.4.1997 defendants made an attempt to dispossess the plaintiff from the disputed property and take forcible possession of the house of the plaintiff as such necessity of filing of the suit arose.

The suit was contested by the defendants on the ground that suit property is 'Sehan' of house of the defendants which is being used by their ancestors since before abolition of Zamindari. The contention of the defendants is that the suit property was purchased by the plaintiff is incorrect and two plaint maps are wrong. The correct map of the property has been annexed along with written statement. In fact, the plaintiff under the garb of the suit is trying to grab the property of the defendants.

The court of first instance framed various issues, out of which issue no.1 is relevant to decide the controversy raised in the present second appeal, which is as under:-

"Whether plaintiff is owner in possession of the disputed house mentioned at item no. (A) and item no. (B) by letters Ka, Kha, Ga, Gha and Cha, Chha, Ja and Jha in the plaint map" .

In support of his submissions plaintiff examined himself as P.W. 1 and two others witnesses as P.W.2 and P.W.3. The photocopy of the registered sale deeds and the original sale deeds were produced before the court below as documentary evidence apart from other documentary evidences. The defendant no.1 examined himself as D.W.1 and one more witness as D.W.2. No documentary evidence was filed by the defendants. The trial court while deciding issue no.1 recorded the finding that both the sale deeds dated 15.4.1971 and 20.1.1967 are more than twenty years old and, therefore, presumption shall be raised in so far as the execution of documents and genuineness of the same. The execution of the documents are proved under section 90 (1) of the Evidence Act( hereinafter referred to as the 'Act').

In so far as the contents of the sale deed are concerned it has further examined the same, in view of the oral and documentary evidences filed by the plaintiff. The oral evidence of the defendants were also examined to ascertain the contents of documents, namely, sale deeds dated 15.4.1971 and 20.1.1967 which were basis of the suit filed by the plaintiff for permanent injunction.

The trial court has recorded the finding that sale deeds were never challenged by the defendants in any court of law and not even a counter claim has been filed in the present suit. This apart a perusal of the documentary evidence reveals that original suit no. 200 of 1967 was filed by the father of the defendants no. 2 and 3 namely Dwarika, who was brother of defendant no.1 with respect to the plot no. 455 area 52 decimal ( subject matter of the sale deed dated 20.1.1967). The suit was filed against the vendors namely Vipat alias Bhuwan and the plaintiff. The said suit was filed with respect to the execution and registration of the sale deed. The suit was dismissed and appeal filed against the dismissal of the suit was also dismissed vide order dated 13.3.1968. Thus defendants lost suit with respect to the property which is subject matter of the present suit. D.W.1 admitted the said fact in his oral evidence.

In so far as the report of Advocate Commissioner is concerned, objections were filed by both the parties against the same and was rejected by the trial court on the ground that the report is against the situation on the spot. Further, trial court examined oral evidence of the plaintiff and defendants , recorded the findings of fact that defendants had not disputed the execution of sale deeds and further also admitted that suit property shown in the plaint map as item no. Aa and item no. Ba. The contention of the defendants that suit property shown as Item No. Aa and item no. Ba in the plaint map is not identifiable in as much as it does not relate to the property shown in the sale deeds, was rejected by the trial court. The trial court examined the sale deeds with respect to the property shown in the map and recorded the finding of fact that boundary shown in the sale deeds and plaint map of the suit property are one and the same.

After examining all the documentary and oral evidence the trial court recorded the finding of fact that plaintiffs have proved that they are the owner of the suit property through sale deeds. Defendants have failed to prove their ownership and possession over the suit property as described in the plaint and also the sale deeds.

Issue no. II was decided in favour of plaintiff and against the defendant. After examining all other issues suit was decreed for permanent prohibitory injunction and by judgement and order dated 17.3.2005, the lower appellate court dismissed the appeal filed by the defendants and affirmed the finding recorded by the trial court. While affirming the findings of the trial court it has categorically recorded that suit property is clearly identifiable and tally with the property mentioned in two sale deeds dated 15.4.1971 and 20.1.1967. Plaintiff had proved his possession over the suit property. The two sale deeds were proved by the plaintiff by oral evidence and further both the sale deeds being more than twenty years old document presumption was raised with respect to valid execution of the sale deeds in accordance with the provision of section 90(1) of the Act. The defendants in their oral evidence have failed to prove their possession in contradiction of the possession of the plaintiff.

Challenging the concurrent finding recorded by the two courts below , learned counsel for the appellant filed the second appeal. The substantial questions of law framed and argued by the appellant's counsel as (I), (II) and (III) are as follows:-

"(I) Whether the courts below were justified in drawing presumption in respect of document of title which is the basis of suit in view of the U.P. Amendment in Section 90 of Evidence Act as applicable in the State of U.P. ?

(II) Whether the presumption can be drawn in respect of the certified copy of the document of the title filed on behalf of plaintiff/respondent?

(III) Whether a decree for injunction and eviction can be granted in respect of the property which is not identifiable at the spot?"

In so far as the substantial questions of law no. 1 and II are concerned it may be noted that trial court has recorded the finding of fact that original sale deeds were produced before the court below by the plaintiff . Presumption was raised with regard to execution of sale deed and after examining its contents it was found that plaintiff is owner in possession of the suit property.

Assailing the said finding recorded by the two courts below, learned counsel for the appellant submits that no presumption can be raised in view of section 90-A (2) of the Act in respect of two sale deeds which are the basis of the suit. Plaintiff has failed to prove the sale deeds by leading cogent evidence and as such sale deeds can not be read in evidence. He submits that section 90-A (2) of the Act will be applicable in the present case and it clearly prohibits the presumption to be raised in respect of documents which is basis of the suit and relied upon in the plaint itself. In order to appreciate the arguments of the learned counsel for the appellant, it is necessary to examine section 90 and 90-A of the Act. Same are reproduced as under:-

"90. Presumption as to documents twenty years old-(1)Where any document, purporting or proved to be twenty 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 document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested......

(2) Where any such document as is referred to in sub-section (1) was registered in accordance with the law relating to registration of documents and a duly certified copy thereof is produced, 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, it is that person's 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 have been executed or attested..........."

90A (1)(1) Where any registered document or a duly certified copy thereof or any certified copy of a document which is part of the record of a Court of Justice , is produced from any custody which the Court in the particular case considers proper, the Court may presume that the original was executed by the person by whom it purports to have been executed.

(2) This presumption shall not be made in respect of any document which is the basis of of a suit or of defence or is relied upon in the plaint or written statement........................................"

A careful reading of both the sections clearly indicates that restriction as mentioned in section 90 -A (2) of the Act will not be applicable in so far as presumption which has been raised under section 90(1) of the Act,in view of the pronouncement of Full Bench of this court in Ram Jas and others vs. Surendra Nath and other reported in AIR 1980 Alld. 385. The question which was referred to the Full Bench is as under:-

"Whether Sub-section (2) of Section 90-A of the Evidence Act as amended by the U. P. Civil Laws (Reforms and Amendment) Act controls the operation of Section 90(1) and (2) of the Evidence Act as amended by the said U. P. Civil Laws (Reforms and Amendment) Act, 1954."

The said question was answered by the Full Bench in paragraphs 15 and 16 of the judgement which are as below-:

"15. The presumptions available under Sections 90 and 90-A are also not similar. Section 90(2) permits the raising of the presumption in respect of the signature, handwriting, execution and attestation, while Section 90 permits a presumption only in respect of execution. Section 90 deals with documents which are more than 20 years old while Section 90-A places no such restriction and includes also documents from judicial record Neither of the two sections, therefore, can be said to be occupying a field which the other exclusively occupies. They deal with different fields and different circumstances and permit different types of presumptions to be raised.

16. For the reasons given above it is not possible to hold that Sub- section (2) of Section 90-A will override and nullify Section 90 if the document, though more than twenty years old, is the basis of the suit or the defence or is relied upon in the plaint or written statement. We are, t therefore, of opinion that Om Prakash v. Bhagwan (AIR 1974 All 389) does not lay down the correct law."

Careful reading of the said judgement of Full Bench indicates that it has been held that sub-section (2) of section 90-A will not override and nullify section 90 if the documents, though, more than twenty years old is the basis of the suit or defence or is relied upon in the plaint or written statement. It was held that the Division Bench of this court in case of Om Prakash vs. Bhagwan Das reported in AIR 1974 All. 389 does not lay down correct law. Reference was answered in negative. It may be noted that section 90 (1) does not draw any distinction between an original document or certified copy of the same which is twenty years old. Moreover in the present case, original sale deeds were produced. Therefore, the courts below cannot be faulted for drawing presumption regarding execution of the said document. Thus two substantial questions of law raised by the learned counsel for the appellant having been answered by the Full Bench of this court cannot said to be substantial questions of law, hence this appeal cannot be entertained on these questions.

Now this court deals with the judgments relied upon by the learned counsel for the appellant in support of his submission. Learned counsel for the appellant relied upon the judgment of Ghurahu and others Vs. Sheo Ratan and others reported in AIR 1981, Allahabad,3.. It was held therein that presumption as laid down in section 90 of the Act dispenses with proof of documents as required in Sections 67 and 68 and what is required to be done is deemed to have been done by operation of law. But the proof of signature or handwriting does not establish that whatever is stated in document is also correct. That has to be proved not only by production of document but by proving its contents as well. In the present case, it may be noted that plaintiff after producing the documents, namely, two sale deeds also examined himself and contents of the documents as well as by producing oral evidences, it was established that suit property is the same property which was purchased by him and he was put in possession of the same after execution of sale deeds. He also proved his possession over the suit property. Defendants have failed to produce any evidence to the contrary and hence trial court after drawing presumption with regard to execution of the sale deeds and after examining its contents rightly recorded the finding of fact that plaintiff is owner in possession of the same. The lower appellate court upheld the said finding after examining the evidence on record. The finding of fact recorded by two courts below on the basis of evidence on record does not warrant any interference in the present appeal.

Next judgment which has been relied upon by the learned counsel for the appellant is Krishna Mohan and another Vs, Bal Krishna Chatuvedi (deceased) and others reported in AIR 2001 Alld. 334. The facts of the said case are different from the present case as there question was of presumption to be raised under section 90-A of the Act as amended in U.P.. whereas in the present case presumption was drawn under section 90 of the Act. To recapitulate it may be noted that law laid down in the Full Bench of this court in Ram Jas(supra) will hold the field, wherein it was held that presumption as raised under section 90 and section 90-A of the Act are operating in different field and are independent of each other, thus said judgment is of no help to the appellants.

Another judgment of this court in Dani Ram(since deceased) Vs. Jamuna Das(since deceased) reported in 2009 (9) ADJ 698 is distinguishable in the facts and circumstances of the case. The question in the said case was as to whether certified copy of the sale deed could be admissible for evidence under section 90 and section 90-A of the Act when original sale deed though in possession was not produced. In the present case ,original sale deeds were produced before the court below and after drawing presumption with regard to execution of the same, the contents of the sale deeds were also proved by the plaintiff by producing cogent evidences. Thus the said judgement is of no help to the appellants.

Third substantial question of law raised by the appellant is that property in question is not identifiable on the spot and, therefore, no decree of injunction and eviction could have been passed. Dealing with the said question suffice is to say that no decree of eviction was passed by the two courts below. In fact a finding of fact was recorded by the court below that defendants are not in possession of the disputed property rather plaintiff has proved his possession over the suit property. After recording the finding of fact that suit property is clearly identifiable by two registered sale deeds which were produced in original and execution and contents of sale deeds having been proved, it was rightly held that plaintiff is owner of the suit property. The report of the Advocate Commissioner was rejected by the court below and a finding of fact has been recorded that his report is against the position of the suit property on the spot.

In view of the above discussion, it is concluded that judgement and decree passed by the two courts below is in accordance with law.No substantial questions of law arises for consideration in the present appeal.

The Appeal is accordingly dismissed.

Date :-16.8.2013

Aks.