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19. The defendant Nos.2 & 3 alleges that plaintiff's husband's acquaintance - Bharat K. Patel had friendly terms with one criminal lawyer, later on they came to know, that one higher police officer was interested in the suit property.

20. Defendant Nos.2 & 3 pleads that Lilaben Ranjit Ashar who was residing at Mumbai had purchased the property from C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 the plaintiff by paying 25 times the value of the purchase price of Rs.8401/- and in four receipts with a revenue stamp affixed on it, the plaintiff accepted the total amount putting her signature thereon. Plaintiff had executed banakhat / agreement to sell with possession of the open plot by executing stamped agreement in presence of the Executive Magistrate. Defendants claim that plaintiff had put her signature on all the documents, four receipts, agreement to sell, power of attorney and possession receipt before the Executive Magistrate and therefore, from 23.01.1985, the plaintiff is not in possession of the suit property and on 01.06.2010, the power of attorney holder - defendant No.1 after execution of sale deed had entrusted the actual physical possession of the land, thereafter, they had expended money for the construction plan, which was sanctioned by the Corporation and for the construction, the land was levelled and name boards were put on the land. The defendant Nos.2 & 3 also claims that witness - Jayaben Kantilal Amin had admitted the signature on the agreement to sell in her statement before the J.P. Road Police Station. Thereafter, in her subsequent reply she had given contrary facts which bears mention in the judgment passed by the Sessions Court. The defendants claim to be the bona fide purchasers. The money receipts, agreement to sell, power of attorney, possession receipt are all in writing and on the basis of those, the sale deed was executed by defendant No.1 as power of attorney of the plaintiff. The defendant has also C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 taken the plea that the signature on all the four documents would match the signature of the plaintiff in the sale-deed of the year 1964, showing her ownership, the defendants have alleged that thereafter intentionally the plaitiff has made changes in her signatures.

25. Learned Senior Advocate Mr. Percy Kavina urged that there is a difference between a case pleaded on forgery and non-existing documents. Possession follows title and it is the case of the plaintiff that antecedent claimed to the sale deed in the name of defendant Nos.2 & 3 were non-existent. The documents under which the defendants claim possession are C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 non-est and illegal and therefore, Mr. Kavina submitted that there was no necessity on the part of the plaintiff to ask for possession. Mr. Kavina submitted that defendant No.1 had no disposing power. Hence, the sale deed in question is void. It is a categoric case of the plaintiff that she had never executed such documents and thus, there would not be any case to claim any signatures being forged. Learned Senior Advocate Mr. Kavina further stated that the learned trial Court Judge ought not to have exhibited the photo copies of the disputed documents and further submitted that the plaintiff could not ask for cancellation of those documents which never existed. Further, law does not permit the plaintiff to challenge the interim orders on conjoint reading of section 105 with Order 41 Rule 22 of C.P.C. Mr. Kavina further stated that law does not recognize the acceptance of photo copies in evidence. No attempt has been made for issuing the notice under section 66 of the Indian Evidence Act, the original of the Power of Attorney has not been produced, the plaintiff has clearly disputed the said document in her evidence in examination-in- chief alleging that back-dated stamp has been used by creating the seal and signature. Plaintiff in her evidence has challenged the Executive Magistrate power to authenticate and execute such document. Learned Senior Advocate Mr. Kavina stated that section 85 of the Indian Evidence Act does not permit any such document to be executed before the Executive Magistrate and any sale deed on the basis of such illegal power of C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 attorney also does not convey any valid title. Placing reliance on section 3 of Cr.P.C. and section 3(32) of the General Clauses Act, 1897, he submitted that the term 'Magistrate' used under section 85 of Evidence Act would only include a person exercising powers of a Magistrate under the Cr.P.C. and Section 3 of Cr.P.C. clarifies that without any qualifying words, 'Magistrate' shall be construed as those performing judicial work.

25.1 Learned Senior Advocate Mr. Kavina drew attention of the Court to The Criminal Procedure (Identification) Act, 2022, No.11 of 2022, which was published in the Gazette of India on 18.04.2022, to submit that the term 'Magistrate' means, - (i) in relation to a metropolitan area, the Metropolitan Magistrate;

(ii) in relation to any other area, the Judicial Magistrate of the first class; or (iii) in relation to ordering someone to give security for his good behaviour or maintaining peace, the Executive Magistrate. Thus, Executive Magistrate would be a person having the function under Chapter 8 of the Cr.P.C. ordering someone to give security for the good behaviour and maintaining peace. Section 85 of Evidence Act does not recognize Executive Magistrate, so the disputed power of attorney would not draw any presumption, since it has not been executed and authenticated by the Magistrate empowered to do so.

37.1 Here, in the present case, it was for defendant Nos.1, 2 and 3 to prove that the documents and transaction in question were bona fide and genuine. Thus, only when the defendants could have proved so, then the plaintiff was to dislodge them C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 by proving that it were sham, bogus and fictitious. The case before the trial Court was for appreciation of facts and circumstances where none of the parties have preferred to produce or bring on record the original documents. Defendant No.1, in whose custody those disputed documents were stated to be by defendant Nos.2 & 3, had failed to produce them. The defendant Nos.2 & 3 wanted the trial Court to decide their right, title on the suit land by way of the sale deed. Defendant Nos.2 & 3 had failed to prove the existence of power of attorney which they say was executed by plaintiff in favour of the defendant No.2 and was authenticated by the Executive Magistrate. The defendant Nos.2 & 3 were required to give notice under section 66 of the Evidence Act. Defendant Nos.2 & 3 could not have remained silent spectators, to have waited for defendant No.1 to produce the original documents on his own. The power of attorney original is not on record. As per the plaintiff, no such document exist. Defendant Nos.2 & 3 could not have merely relied on the photo copy of the power of attorney. Under section 85 of the Evidence Act, presumption as to the power of attorney could have been drawn only on the original document. The plaintiff had very specifically pleaded that back-dated stamp paper were used, the seal and signature in the name of Executive Magistrate on the alleged power of attorney, were forged. The fraud so pleaded was of having prepared fake power of attorney, for the purpose of deception. The law is clear on the point that if a party calls C/FA/2592/2019 JUDGMENT DATED: 06/05/2022 upon other to produce a document as evidence and on being produced, inspects them, the document should be taken as evidence by both the parties without proof and should be admitted in toto. The notice contemplated in section 163 of Evidence Act is a notice to be given under section 66 of the Evidence Act. Similarly, the notice envisaged by section 89 of the Evidence Act is also the notice referred to in sections 66, 163 and 164 of the Evidence Act. The notice requires the party to produce the document which is in his possession or power. If the party fails to produce the documents despite the notice, the party at whose instance the notice has been issued is entitled to adduce secondary evidence of the contents of the document. Section 89 of the Evidence Act allows the Court to presume that every document called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law. This benefit of law could have been availed by defendant Nos.2 & 3.