Calcutta High Court (Appellete Side)
Baidyanath Santra & Ors vs Gourhari Sanki & Ors on 20 January, 2023
20.1.2023
79
Ct. no. 652
sb
CO 1060 of 2019
With
CAN 1 of 2019(Old CAN 8259 of 2019)
Baidyanath Santra & Ors.
Vs.
Gourhari Sanki & Ors.
Mr. Biswaranjan Bhakat ...for the petitioners
Ms. Indrani Pal ...for the Opposite parties
Being aggrieved and dissatisfied with the order no.
272 dated 3.1.2019 and order no. 275 dated 11.2.2019
passed by the learned Civil Judge (Junior Division), 3rd
Court, Tamluk, Purba Midnapore in Title suit no. 51 of
1993, the present application under Article 227 of the
Constitution of India has been preferred.
The petitioner contended that petitioner had filed
aforesaid suit for declaration of title and permanent
injunction against the opposite parties herein. The
defendant nos. 1,2 and 3 are contesting the suit by filing
written statement and on behalf of the plaintiff, five
witnesses were examined. On 7th July, 2018 during
Examination-in-chief of DW1, on behalf of defendant no.
1, several deeds were tendered for marking exhibit after
dispensing with formal proof since the documents are 30
years old. The plaintiff had raised objection against such
prayer of defendant no. 1 on the ground that those deeds
are not relevant to the suit in question, and that said
2
deeds are less than 30 years old and as such those deeds
should not be marked as exhibit on tender, taking aid
from Section 90 of Evidence Act. Such objections were
being accepted by the court below and aforesaid deeds
were not marked exhibit but marked for identification.
Subsequently, on behalf of defendant no. 1, an
application was filed on December 5, 2018, stating inter
alia, that on 7th July, 2018 at the time of tendering the
affidavit in chief those documents were filed and those
documents i.e. deeds of conveyance are dated October 5,
1998 and October 6, 1966, 4372 of 1988 and 4355 of
1988, and those deeds became thirty years old by this
time, during pendency of suit and for which those
documents deserve to be marked as exhibit taking aid
from Section 90 of Evidence Act, which are awaiting for
marking exhibit before the learned trial court. The said
application dated 5.12.2018 came up for consideration on
January 3, 2019 and the trial court by the impugned
order was pleased to allow the said application of
defendant no. 1 and thereby marked seven deeds of
conveyance as exhibit M to Exhibit S, discarding the
objections raised on behalf of the petitioners herein.
Plaintiff/petitioner subsequently filed a petition on
10.1.2019
for modification of order and court below
rejected the plaintiff's prayer for modification of order by
the other impugned order dated 11.2.2019. Being
aggrieved by both the orders i.e. order dated 3.1.2019 and
order dated 11.2.2019, plaintiff/petitioner has come
before this court for setting aside said orders.
Learned counsel for the petitioners submits that
learned trial Judge has acted with material irregularity
and arrived at an erroneous decision. Learned trial judge
has failed to appreciate that plaintiff had raised objection
on July 7, 2018 against marking of deeds in question as
exhibit dispensing formal proof and such objection was
allowed. Learned trial court has failed to appreciate that
30 years are to be counted on the date when the
documents are tendered in evidence for the first time to
get the same marked as exhibit, and in the instant case
documents were tendered before the expiry of 30 years
period and as such at a subsequent period completing 30
years age, defendant cannot take advantage of Section 90
for proving the said deed. Accordingly, the order
impugned is liable to be rejected.
Learned counsel for the opposite parties supports
the judgment passed by the learned court below and
contended that though the deeds were filed on July 7,
2018 but practically it was marked exhibit on 3.1.2019
when the court allowed the defendant's prayer for making
those documents as exhibit, as by that time, 30 years
have already been completed and accordingly, the trial
court rightly marked those documents as exhibit, with
the aid of advantage of presumption contained in Section
90.
I have considered the submissions made on behalf
of both the parties.
From the copy of the examination sheet of DW 1, it
appears that on July, 7, 2018 the documents were
tendered by DW1. The said documents were not marked
as exhibit but it was marked for identification. On
7.7.2018, when the deeds were tendered for examination
for marking exhibit, the age of the deed from the date of
execution was much less than thirty years and
accordingly, the said deeds in question were tendered in
evidence much prior to maturing 30 years age and as
such the defendant is not entitled to get the benefit of
presumption as laid down in Section 90 of the Indian
Evidence Act, even if during pendency of suit, the
documents attained age of 30 years from the date of
execution.
In Om Prakash (Dead) th. His lrs. Vs. Shanti Devi
& Ors. reported in (2015) 4 SCC 601 in a similar context
it was held by the Apex Court in paragraph 12 as
follows:-
"The first and fatal stumbling block of the Appellant's
case, then, is that at the time of tendering of the Gift Deed
before the Trial court, the thirty-year maturation period
provided by Section 90 was not satisfied, the Gift Deed
having been tendered in evidence after around 29 and one-
half years, since he had admitted to it in the course of the
Defendant/Appellant examining himself unlike the stage of
pleadings this incontrovertibly partook the nature of
tendering evidence. The time prerequisite to even essay
availing of the Court's discretionary powers under Section
90 had not been met. Being a statutory requirement, courts
cannot alter the operation of the statute by reading into it
as allowing a documents aged 29 and one-half years to be
open to the law's presumption. The Judgment of the High
Court below has considered the issue of this document's
eligibility under Section 90, and repudiated this
submission, the document not even, echoing the words of
Section 90, "purporting" to be thirty years old at the time of
tendering. We hasten to add that even if the document
purported or proved to be thirty years old, the Appellant
would not axiomatically receive a favourable presumption,
the Section 90 presumption being a discretionary one."
In view of the aforesaid facts and circumstances of
the case and settled position of law, since the deed which
was marked as exhibit by the impugned order dated
3.1.2019 was actually tendered for evidence on 7th July,
2018 when 30 years were not completed, the court below
has committed error in dispensing with the formal proof
of the deeds in question and marking the said documents
exhibit by taking aid of presumption under Section 90.
In view of the above, the impugned orders dated
3.1.2019 and 11.2.2019 are hereby set aside.
Accordingly, C.O. 1060 of 2019 is allowed. Pending
application, if any, are also disposed of.
Interim order, if any, stands vacated.
However this order will not preclude the defendant
to prove the documents/deeds formally in accordance
with law, which were tendered on 7th July, 2018, when
the said deeds did not attain maturity age of 30 years. It
is also made clear that I had not gone into the merits of
the case or merit of the deeds.
Urgent photostat certified copy of this order, duly
applied for, be given to the parties upon compliance of all
requisite formalities.
(Ajoy Kumar Mukherjee, J.)
