Gauhati High Court
Paramesh Sarmah And Ors. vs Islam Ali And Ors. on 29 September, 2000
JUDGMENT J.N. Sarma, J.
1. This Second Appeal has been filed by the plaintiffs. The plaintiffs brought a suit being Title Suit No. 21 of 1989 in the Court of the Munsiff No. 1, Nalbari. The suit was dismissed by the Trial Court, There was an appeal being Title Appeal No. 12/90 and the learned Judge by Judgment dated 7.11.1990 dismissed the appeal and affirmed the Judgment of the learned Munsiff. Hence this Second Appeal.
2. The following are the substantial questions of law :
"(1) whether the Judgments of the learned courts below were vitiated by non-consideration of the relevant documents Exhibits- 2, 3, 4, 6(1) to (14) ?
(2) Whether the learned Courts below could have excluded Exhibit-1 from consideration on the ground that the witnesses in respect of the said sale deed were not examined in view of the provisions of Section 90 of the Evidence Act ?
(3) Whether the oral evidence at all could be allowed to contradict a written document Exhibit-1 in view of the bar Under Section 92 of the Evidence Act ?"
3. I have heard Shri B.K. Goswami, learned Advocate for appellants and Shri A.K. Goswami, learned Advocate for the Respondents. The brief facts are as follows :
The plaintiffs filed the suit for declaration of right, title and interest on the suit land measuring 8 Bighas-4 Kathas-13 Lechas on the strength of a deed of purchase in the year 1948. The case of the plaintiff is that he was in possession of the land after purchase. Subsequently the defendant No. 1, the father along with his sons Defendants No. 2 to 4 trespassed into the land. The plaintiff Instituted a proceeding Under Section 145 of the Code of Criminal Procedure in the Court of the Executive Magistrate, Nalbari. But as the order of attachment was vacated by the learned Executive Magistrate, the defendants completely dispossessed the plaintiffs from the suit land. The name of the plaintiff was also mutated, but subsequently it was cancelled at the intervention of the defendant No. 1. A Written Statement was was filed. The case of the defendant was that the suit land was mortgaged in favour of Late Loknath Sarma at a consideration of Rupees One thousand and Five hundred respectively. Although the land was mortgaged, the possession of the same was retained by the defendant No. 1 Lateron when Loknath Sarma asked for the return of Rupees one thousand five hundred, the defendant No. 1 having no other alternative took another amount of Rupees One thousand five hundred from the plaintiff and thereafter an another mortgage was created for an amount of Rupees Two thousand in favour of the plaintiff. But he did not part with physical possession. The plaintiff fraudulently got his name mutated. During the pendency of the suit the plaintiff died and as such all his sons and daughters were substituted in the suit.
4. As many as eight issues are framed. For the disposal of this appeal the following issues are material, issue No. 4:-- Is the suit barred by limitation ?
Issue No. 5 : Whether the plaintiff has purchased the land as alleged ? Issued No. 6 : Whether the plaintiffs have any right, title and interest over the suit land ?
5. In the suit the plaintiff examined 3 PWs. and defendant examined also 3 witnesses. The main question in this appeal is that Exhibit-1 which is a document of thirty years old. Whether production of it is sufficient to prove the sale. The learned Judge has held that Exhibit-1 was not properly proved and as such no title could pass to the plaintiff on the basis of such deed of sale.
6. Let us take up the first question of law formulated in this case, the is, non-consideration of Exhibit-2, 3, 6, 6(1) to (14), Exhibit-2 is the certified copy of the Jamabandi. Entry Cha shows that the name of Banshidhar was mutated to this land by endorsement dated 24.11.1956 on the strength of a regular mutation and it is mentioned there that this is by way of sale. Exhibit-3 is the Chitha for the land and that also shows that the name of Bangshidhar Sarma was recorded there. Exhibit-4 is the patta for the land and that also shows that the land stood in the name of Bangshidhar Sarma. Exhibit-5 is another patta for the land. Exhibit 6(1) to 6(14) are the land revenue paying receipts for the land. Exhibit-7 is the order by which the mutation order was cancelled. That was vide order dated 1.9.1998, that is, after about 30 years of the order of the mutation. Section 40 of the Assam Land and Revenue Regulation provides for record of rights. The Settlement Officers has to frame for each estate a record of right in the prescribed manner. The note appended to the section shows that the record of rights is the Jamabandi based on the Chitha and the Fieldmap. Entry is the record of rights are to be founded on the basis of actual possession. Undoubtedly at the time of settlement the Jamabandi is prepare which records the name of the pattadar on the basis of possession (see AIR 1967 Assam and Nagaland 9, Abdul Hasen and Ors., appellants v. Haji Mahiuddin and Ors., respondents). Section 4( 1)(2) read with Section 53 of the Assam Land and Revenue Regulation raises a presumption regarding possession in favour of recorded pattadar unless rebutted (See 1952 Assam 34, 40, 41, Pratap Chandra Sarma v. Abannth Sarma). The learned Judge in deciding the matter did not consider this aspect of the matter and I find that non-consideration of these documents with regard to presumption of possession and title is an error of law. I hold that these documents raise a valid presumption in favour of the plaintiff and that has not been rebutted by the defendant and as such this will be deemed to be correct as provided in the statute as indicated above.
7. Next the question No. 2, that is, whether Exhibit-1 was proved properly as required. The learned Courts below have found that as the witness to the deed has not been examined, the Exhibit-1 has not been proved properly, the learned advocate for the respondent places reliance on the following decisions in-support of the contention that the deed was not proved.
(1) AIR 1981 Allahabad 3 (Ghurahu and Ors., Petitioners v. Sheo Ratan and Ors., respondents) where the learned Single Judge of the Allahabad High Court has laid down as follows :
2. "During hearing it was claimed that appellate and revisional authority misread the mortgage deeds as Nanhkoo was described as son of Surhar Yadab whereas parties were Harijans by caste. To verify this opposite parties were directed to produce the original which they did and it transpired that copy filed by petitioner was incorrect. The counsel thereafter did not press this aspect but urged that these mortgage deed may have been admissible under Section 90 of Indian Evidence Act, being thirty years old document, but contents of document was yet to be proved in accordance with law. According to him presumption under section could be raised only in respect of signature and it having been written by the Scribe. But it did not, extend further reliance was placed on Ram Krishna v. Gajadhar (AIR 1958 Orissa 26) : ILR (1966) Cal. 395 and Kalyan Sing v. Chhoti (AIR 1973 Raj. 263).
3. The submission is not without merit. The extension of presumption is laid down in the Section itself. It cannot, be stretched beyond it. If a document is thirty years old and the Court is satisfied of its proper custody it may be presumed that signature and any other parts of document which purports to be in handwriting of any particular person is in that, person's handwriting, that the document was executed by the person by whom it purports to have been executed and that the document was attested by the person by whom it purports to have been attested. In fact Section 90 dispenses with proof of document 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."
(2) AIR 1956 CALCUTTA 205 (Kotiswar Mukherjee and Ors., Appellants v. Paresh Nath Mukherjee and Ors., Respondents) wherein in Paragraphss 13, 17 and 20 the law has been laid down as follows :
" 13. Further, the Section makes it clear that the presumption which is to be raised relates only to the signature, execution or attestation of a document. It does not involve any presumption that the contents of the document are true or that it had been acted upon. Such allegation has to be proved on adducing proper and relevant evidence (See-Bhagirathmal Kanodia v. Bibhuti Bhusan)(C)(ante).
17. The proper inference from all the including the case of ownership by themselves and their predecessors was that under the grant they received the education. The appellants on the other hand said that the respondents had disclosed a copy of the original grant which the appellants tendered in evidence. They contended that the document is sufficiently plain terms gave the melveram only. The respondents denied the admissibility of the copy and raised an issue on the question of the construction of the grant as well.
20. It has been argued before us that in spite of the strict provisions of S. 90, Evidence Act, there may be circumstances under which a copy produced would be available not only to prove the existence of the original document but of the terms thereof, as well.
The argument seems to be well founded. The circumstances, therefore, have to be considered, where on the facts in a particular case, if a copy of a document is found to be admissible as secondary evidence under S. 65, Evidence Act, whether the terms thereof can be taken to have been proved, although they do not under S. 90 itself prove themselves on a presumption raised under that section."
So the Court can consider whether the terms have been proved.
(3) 1996 (8) SCC 357 (Lakhi Baruah and Ors., Appellants v. Padma Kanta Kalita and Ors., Respondents) wherein in Paragraph-15 the law has been laid down as follows :
"15. Section 90 of the Evidence Act, 1972 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature of execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document. Section 90 has been incorporated in the Evidence Act, 1872 which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the document in question is produced from proper custody. It is. however, the discretion of the Court to accept the presumption flowing from Section 90.
There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons."
(4) 1986 (1) GLR 98 (Huidrom Achou Singh (Def. No. 1) .....Appellant in S.A.7/81 Thoudom Mangol Singh (Def. No. 2) .... Appelant in S.A. 8/81.
Smti. Longiam Ningol Vendrempam Ongbi (Def. No. 3) Nungshi Devi ....... Appellant in S. A. 9/81 Versus
Smti. Thokchom Ntngol Njngthrmcha Ongbi Idempishak Devi (Plaintiff) and others. ......... Respondents.
wherein the law has been laid down as follows :
"Section 90 of the Evidence Act deals with presumption as to documents thirty years old. Under it 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 case of document executed or attested, that it was duly executed and attested by the person by whom it purports to be executed and documents are said to be proper custody if they are in the place in which; and under the case of the person with whom, they would naturally be ; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
The contents of a document has different aspects. So far as handwriting is concerned, under Section 90 the presumption is that it was written by the scribe. So far as the truth of the contents is concerned, it is to be proved by evidence.
This section was designed to meet situations of varying character, where passage of time might have obliterated the proof of the genuineness of any disputed document and wide powers are conferred on the Court. The Section only says that the Court may raise the presumption mentioned in it, not that it must do so, and the expression "may presume" ought generally to be construed in the more rigorous of the senses allowed by Section 4 of the Act. The presumption is rebuttable. The Court Bust examine the surrounding circumstances tending to establish the connection of the party producing the document with the person with whom the document should naturally have been."
(5) AIR 1968 Andhra Pradesh 276 (Boddu Veeraiah and Ors., Appellants v. Arinirala Venkata Lnxmamma and Ors., Respondents) wherein in paragraph-6 the law has been laid down as follows :
"6. The said document was filed by the first defendant and it being more than 30 years old and coining from proper custody, it must be presumed to have been executed by Seshaiah by whom it purports to have been executed."
(6) AIR (34) 1947 Privy Council 15 (Mannalal, minor and Ors., - Appellants v. Kashibai and Ors., Respondents), wherein the law has been laid down as follows :
"The actual execution and attestation of a Will more than thirty years old and produced from proper custody can be presumed under S. 90."
8. As a general rule if a document is produced before a Court, its execution must be proved by a witness. If the document is required by law to be attested, its attestation must also be proved by some witness. If documents produced the Court are not proved they cannot be relied upon. Circumstances may arise when the documents are produced in the Court long after they have been executed and the time alapsed between the execution and the production of document in the Court may be so long all the persons in whose presence the document was executed might have died. If the matter of proof mentioned above is strictly to be followed in such cases a great hardship would be caused and a number of genuine documents will remain not. proved. Section 90 of the Evidence Act is a provision for this kind of emergency. The Section is founded on necessity and convenience. If the document is more than 30 years old and is produced from proper custody, Court may presume about its genuineness and it can be introduced in evidence without formal proof (See AIR 1975 Delhi 236 (F.B.) (M.N. Soi v. New Delhi Municipality).
9. The condition on which the execution of a document, may presume for:
(1) That it must have been existed for 30 years or more ;
(2) It must be produced in Court from proper custody. The document must be in appearance free from suspicion and doubt.
(3) It must be in a handwriting of a person and should not be anonymous.
Generally there is no presumption about recitals in ancient document, but in special circumstances a recital of consideration, legal necessity, etc. may be presumed under Section 90. It is on this background that we decide the effect of Exhibit-1, is a registered deed of sale. It was registered on 3.12.1948 and it categorically shows that it is a deed of sale executed by Defendant No. 1, late Borihana Sheikh and this document was introduced by PW-1, Shri Amiya Kumar Sarma. It was admitted in evidence without objection. That it is a deed of sale that will be evident from Exhibit the Jamabandi where the entry of mutation was recorded in the year 1951. Along with it we may also look at Exhihits-3, 4, 5 and 6, the documents to which mention have already been made. It was the plea of the defendant that it was not a deed of sale, but a deed of mortgage. They miserably failed to discharge this burden. This document was brought to the Court from proper custody, that is from the son of the vendor. We can look to the contents of the document on the basis of the subsequent circumstances as revealed from Exts. 2, 3, 4, 5 and 6. The learned advocate for the appellant in this connection also relied the decision reported in 1999(1) GLT 30 (Munindra Kumar Dey and Ors. Appellants v. Mahendra Shklabaidya and Ors. Respondents), wherein it was pointed out that if a document is admitted in evidence without objection admissibility of the document cannot be challenged subsequently. It is further urged that presumption regarding execution will arise under Registration Act and reliance is placed in Sections 58, 59, and 60 of the Registration Act. It is not necessary to go that aspect of the matter as I have held that this Ext. 1 being a 30 years old document and that document was proved and there was no necessity to examine witness in view of Section 90 of the Evidence Act.
Question No. 3 :- Section 92 of the Evidence Act is not relevant for this purpose. It is the Section 91 which may have some relevancy in this matter. In AIR 1958 SC 448 (Bai Hira Devi and other Appellants v. Official Assignee of Bombay, Respondent), it was pointed out that the Section 91 is based on what is called described exclusion of oral by documentary evidence. The best, evidence about the contents of a document that is required by Section 91 to prove its contents as laid down in the Section is the rule enunciated by Section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of a document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act. But oral evidence may be adduced to show that the document was never intended to operate according to its terms and that was brought into existence for some other purpose. That evidence is not forthcoming in this particular cases. Question No. 3 is answered accordingly.
As Questions Nos. 1 and 2 have been decided in favour of the appellants, this appeal is to be allowed which I hereby do. Accordingly the judgment of the Courts below are set aside and quashed. The suit of the plaintiff, that is, Title Suit No. 21 of 1989 before the Munsiff No. 1 at Nalbari shall stand decreed. The right, title and interest of the plaintiff over the land in question shall stand decreed and the plaintiff shall be entitled to recover possession of the land on the strength of this decree.
10. I pass no order as to costs.