Bombay High Court
Mohd. Yunus Ab. Majid (Dead) Thr. P.O.A. ... vs Ab. Taimur Ab. Majid on 26 March, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.613 OF 2017
Mohd. Yunus Ab. Majid (Dead),
Aged 75 years, Occ.-Agriculturist,
(since deceased by Legal Heirs :
A. Mohd. Anis Mohd. Yunus,
Aged 60 years,
R/o Belkhed, Tq. Telhara,
District Akola.
B. Mohd. Rais Mohd. Yunus,
Aged 52 years,
C. Mohd. Idris Mohd. Yunus,
Aged 48 years,
D. Shamimbi d/o Mohd. Yunus,
Aged 62 years,
E. Safiunbi d/o Mohd. Yunus,
Aged 40 years,
F. Naimabi d/o Mohd. Yunus,
Aged 30 years,
Nos. 2 to 5 R/o Adgaon Bk.
Tq. Telhara, District Akola. .... APPELLANTS
VERSUS
Ab. Taimur Ab. Majid,
Aged 70 years, Occ.- Agriculturist,
R/o Adgaon Bk., Tq. Telhara,
District - Akola. .... RESPONDENT
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______________________________________________________________
Shri B.N. Mohta, Counsel for the appellants,
Shri C.A. Joshi, Counsel for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 26th MARCH, 2019
ORAL JUDGMENT :
Regular Civil Suit 17/2009 instituted by the respondent, who shall be referred to as the plaintiff, seeking decree of partition and separate possession is decreed by the Civil Judge (Junior Division), Telhara by judgment and decree dated 30-11-2010. The predecessor of the appellants Mohd. Yunus Abdul Majid, who shall be referred to as the defendant, assailed the judgment and decree of the trial Court in Regular Civil Appeal 1/2011 which is dismissed by the District Judge-1, Akot by judgment and decree dated 15-4-2017. The legal heirs of the defendant have preferred this appeal under Section 100 of the Civil Procedure Code.
2. This Court issued notice on the following substantial question of law :
Whether the appreciation of evidence in respect of the Deed of Partition dated 29-2-1964 is perverse ?::: Uploaded on - 28/03/2019 ::: Downloaded on - 28/03/2019 23:34:39 :::
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3. With the consent of the learned Counsel Shri B.N. Mohta for the defendant and Shri C.A. Joshi, learned Counsel for the plaintiff, the appeal is finally heard at the admission stage.
4. In the context of the substantial question of law formulated, few relevant facts may be noted.
The suit property is agricultural field bearing Survey 183/2, admeasuring 2.2 H.R. It is not in dispute that the suit property was purchased by the father of the plaintiff and the defendant on 24-3-1953. It is irrefutable from the evidence on record that the names of the plaintiff and the defendant are duly mutated in the revenue record. The defendant contended that by partition-deed dated 29-2-1964 the suit property and other properties were partitioned and the suit property came to the share of the defendant. The defendant further contended that certain properties which came to the share of the plaintiff were sold by the plaintiff.
Both the Courts below have concurrently held that the partition-deed dated 29-2-1964 is not proved.
5. It is not disputed that the suit property was purchased by the father of the plaintiff and the defendant from Kadatu Narayan by registered sale-deed dated 24-3-1953, in the joint names of the plaintiff ::: Uploaded on - 28/03/2019 ::: Downloaded on - 28/03/2019 23:34:39 ::: 4 sa613.17 and the defendant. The revenue record-Exhibit 26 reflects the joint ownership of the plaintiff and the defendant. The partition-deed dated 29-2-1964 was put to the plaintiff who denied having signed the same. The defendant examined Abdul Majid as the attesting witness to prove the partition-deed. Abdul Majid could not identify the signatures. No further effort was made by the defendant to prove the partition-deed dated 29-2-1964. The trial Court noted several suspicious circumstances surrounding the partition-deed. The trial Court further noted that the partition-deed dated 29-2-1964 is not reflected in any revenue record. In the teeth of the admitted position that the suit property was purchased in the joint names of the plaintiff and the defendant the burden to prove that in view of the subsequent partition, the suit property became the exclusive property of the defendant was placed on the defendant. The trial Court recorded a finding of fact that the defendant failed to prove the partition-deed dated 29-2-1964.
The appellate Court re-appreciated the evidence and considered the submission of the defendant that in view of the provisions of Section 90 of the Indian Evidence Act, the trial Court ought to have invoked the statutory presumption and formal proof of the document dated 29-2-1964 ought to have dispensed with. The appellate Court noted that the defendant did not step into the witness box. The attesting witness failed to identify the signature on the ::: Uploaded on - 28/03/2019 ::: Downloaded on - 28/03/2019 23:34:39 ::: 5 sa613.17 alleged partition-deed. Considering the evidence on record and the attending circumstances, the appellate Court declined to take recourse to the presumption under Section 90 of the Indian Evidence Act. The appellate Court then noted that the alleged partition-deed is not reflected in any revenue record and no right on the basis thereof was claimed till the institution of the suit.
6. The appellate Court referred to the decision of the Hon'ble Supreme Court in Lakhi Baruah v. Padma Kanta Kalita reported in AIR 1996 SC 1253 and articulated that the presumption under Section 90 of the Indian Evidence Act is based on the principle of convenience and necessity when it is difficult to prove the old document. Considering the evidence on record, the appellate Court declined to draw the presumption.
7. This Court finds that the Courts below did not commit any error in appreciating the evidence in respect of the alleged deed of partition dated 29-2-1964. The appellate Court was justified in declining to draw the presumption under Section 90 of the Indian Evidence Act. The plaintiff further did not step into the witness box to prove the document. The attesting witness failed to identify the signature. No other evidence was adduced to prove the alleged ::: Uploaded on - 28/03/2019 ::: Downloaded on - 28/03/2019 23:34:39 ::: 6 sa613.17 partition-deed. The partition-deed was not brought in public domain from 1964 till the institution of the suit. Considering the evidence on record, and in view of the failure of the plaintiff to prove the document, which effort the plaintiff did make though not wholeheartedly, the alleged document of partition could not have been admitted in evidence on the basis of the presumption. The appreciation of evidence by the Courts below is certainly not perverse. Au contraire, this Court finds that the findings recorded concurrently are consistent with the evidence on record.
8. The substantial question of law formulated is answered according.
9. The appeal is without substance, and is dismissed with no order as to costs.
JUDGE adgokar ::: Uploaded on - 28/03/2019 ::: Downloaded on - 28/03/2019 23:34:39 :::