Jagdish and Others vs Rameshwar Dayal and Others

Nisha Gupta, J.—This second appeal under Section 100 CPC has been filed against the judgment and decree dated 27.9.2012 passed by Additional District Judge, Dholpur in Civil Appeal No. 06/2011 confirming the judgment and decree dated 31.3.2008 passed by Civil Judge (Junior Division) Bari, in Civil Suit No. 221/1992 whereby the suit for eviction has been decreed in favour of the plaintiff- respondents.

The short facts of the case are that a civil suit has been filed by the plaintiff respondents for eviction on the ground of denial of title of the respondents and other grounds have also been raised. The defendants have denied the contention of the plaint and their contention was that they have constructed the house and residing there from last 30 years. The court below has mainly decreed the suit on the strength of rent deed Ex.13 dated 13.10.66 for which the courts below have raised the presumption under Section 90 of the Evidence Act.

The contention of the appellants is that one of the attesting witness and scribe of the deed was alive, hence presumption under Section 90 of the Evidence Act should not have been raised. The document is a lease hence it was compulsorily registrable. Presumption has been raised on 26.3.2008 and thereafter the suit has been decreed, hence he could not have opportunity for rebuttal. On certified copy of Ex.13, the presumption has been raised. It is an admitted fact that earlier suit 81/84 has been filed between the parties in which document Ex.13 has been produced and at that time, it was not 30 years old, hence presumption under Section 90 of the Evidence Act should not have been raised. No boundaries have been mentioned in the document, genuineness of the document is disputed as stamp has not been purchased by the appellants. There is no allegation that possession has been handed over through Ex.13, hence the courts below have erred in decreeing the suit whereas the contention of the respondents is that certified copy of Ex.13 has been submitted, thereafter original document has been called for and presumption has been raised only for the original document. At any stage, presumption could be raised and these are findings of fact concurrently answered by the courts below and no interference is needed and other contention of the respondents is that the appellants have pleaded two defence that property has been given to them by way of gift which fact has not been proved by the defendants and other contention was that they have raised construction whereas there is a clear evidence that the suit property has been constructed by the original land lord Mahi Prasad. The whole defence of the appellants is falsified. Ex.13 is not a bilateral document, hence it could not be termed as lease. There is ample evidence to show that construction has been raised by Mahi Prasad. Earlier also, the appellants have filed a suit for declaration and injunction which has been withdrawn. Again title of the respondents has been denied, hence the courts below have rightly decreed the suit and no interference is needed.

Heard the learned counsel for the parties and perused the judgments and decree under appeal.

The courts below have mainly decreed the suit on the strength of Ex.13, rent deed which is executed on 13.10.66 and presumption has been raised under Section 90 of the Evidence Act on 26.3.2008 and after raising such presumption, the suit has been decreed on the strength that Mahi Prasad was the original owner and father of the appellants have executed rent deed Ex.13 in favour of Mahi Prasad, hence he is the tenant in the property but he has denied the status of land lord and evidence to this effect has also been submitted that earlier the suit property was rented to Wale from which it has been got evicted in 1963 thereafter Mahi Prasad has constructed the house. Vide Ex.13 it has been rented to father of the appellants. The court below has also rightly disbelieved the defence that suit property has been gifted to father of the defendants or it has been constructed by the respondents. Earlier also the suit for eviction on the strength of title has been filed by the appellants which has been withdrawn and on the strength of it, the courts below have rightly held that the appellants have denied the title of the respondents and suit for eviction has been decreed on the ground of denial of title.

The contention of the appellants is that Shiv Charan and Rama Shankar witnesses to the document are alive and hence presumption under Section 90 of the Evidence Act could not have been raised but before raising a presumption under Section 90 of the Evidence Act, the condition precedent is not that all the evidence which could prove the document should not be available. Per contra, Section 90 of the Evidence Act raised a presumption as regards 30 years old document and it is the another way of proving a document which is exception to general rule and reliance has also been placed on Rao Raja Tej Singh and Others Vs. Hastimal and Others, AIR 1972 Raj 191 wherein it has been held that mere fact that the party has a witness or two in addition for proving the signature of the writing would not be a sufficient reason for not raising the presumption, hence the contention of the appellants is not acceptable that any attesting witnesses are alive or available hence presumption should not have been taken.

The other contention of the appellants is that the document is compulsorily registrable as it is for three years tenancy. The courts below have rightly held that it is only a unilateral document and cannot come in the definition of lease and objection have rightly been disallowed.

The other contention of the appellants is that only certified copy has been submitted and presumption has been raised on certified copy whereas judgments of the courts below and contention of the respondents is that original document has been called for from the case file of earlier suit 81/84, hence when the original was called for and presumption has been drawn, there is no infirmity in raising the presumption under Section 90 of the Evidence Act. The genuineness of the document has also been objected and it has been submitted that boundaries are not identified and the stamp of the document has not been purchased by the appellants. Be that as it may, when the presumption under Section 90 of the Evidence Act has been rightly raised the above contentions are not acceptable at the stage of second appeal as these are all findings as regards to facts and answered by the courts below concurrently and no perversity has been shown in the finding so arrived by the courts below.

An original and innovative argument has been raised by the counsel for the appellants that admittedly, document has been submitted in earlier suit 81/84 and when the document has been submitted earlier, it was not 30 years old hence presumption could not have been raised in this suit for which the counsel for the respondents has relied upon Hazarilal and Another Vs. Shyamlal and Others, (2007) 1 RLW 434 wherein it has been held that the presumption under Section 90 of the Evidence Act can be claimed and drawn at any stage, hence contention of the appellants is not sustainable and mere presentation of the document in earlier suit will not obstruct the courts to raise presumption under Section 90 as held in Surendra Krishna Roy and Another vs. Mirza Mahammad Syed AliAIR 1936 15 (Privy Council) . The period of 30 years is to be reckoned form the date on which the document is tendered in evidence, hence mere filing of document in earlier suit will not preclude the courts from raising the presumption under Section 90 of the Evidence Act in later suits.

Further the contention of the appellants is that presumption has been raised on 26.3.2008, hence he could not have any opportunity to rebut the same. The reliance has rightly been placed on Hazarilal (supra) wherein it has been held that on belated stage even in appellate stage, the presumption could be raised and other party cannot claim opportunity to lead evidence in rebuttal. In the present suit both the parties have lead evidence on the rival contentions, hence the contentions of the appellants have no force. The appellants themselves have relied upon decision of the Apex Court in Om Prakash (dead) through His L.Rs. Vs. Shanti Devi and Ors., Civil Appeal No. 20/15 decided on 5.1.2015 wherein it has been held that when document has been tendered and admitted in evidence after 30 years of execution of the deed then the party could get the advantage of presumption under Section 90 of the Evidence Act. Here in the present case also admittedly document has been tendered and admitted in evidence only after 30 years of the execution of the rent deed which is of dated 13.10.66, hence presumption has rightly been raised.

Thus, in view of the above, the courts below have rightly decreed the suit in favour of respondents on the ground of denial of title. These are all findings of fact concurrently answered by the courts below. No perversity has been shown nor any substantial question of law has been raised in the present appeal and the appeal is liable to be dismissed.

Consequently, the appeal fails and is dismissed.