Md. Hakim vs Md. Reyal and Others

Gurusharan Sharma, J.—Heard the parties and with their consent this appeal is disposed of under Order XLI, Rule 11 of the Code of Civil Procedure. Plaintiff''s suit for declaration of title and confirmation of possession over 4 decimals land of plot No. 252 in Mahalla Hinoo of Ranchi town against defendants was decreed Defendants'' ancestors sold 5 decimals of plot No. 252 to plaintiff''s father by registered sale-deed dated 3.5.1950 (Ext. 2). Defendants denied execution of said sale-deed by Wahid and claimed their right, title and interest over the suit land. In fact Ext. 2 was executed by three persons, namely, Sk. Wahid, Mostt. Basiran and Mostt. Rasulan, son and daughters of Sk. Wazir. The said document being more than 30 years old was admitted in evidence u/s 90 of the Evidence Act and the trial Court presumed the same to be genuine and duly executed by aforesaid persons. The suit was, accordingly, decreed. However, on appeal by defendants. Court of appeal below reversed trial Court''s decree and dismissed the suit. In my opinion, substantial question of law that arises for consideration in this appeal is "whether Court of appeal below erred in law in holding that trial Court should not have drawn presumption u/s 90 for Ext. 2 and should have drawn presumption u/s 114(g) of the Evidence Act for withholding disbursement register"? According to defendants Wahid retired from service of Doranda Notified Area Committee in the year 1976, where he used to receive his salary by putting his signature on disbursement register as "Wahid AH" and not as "Sk. Wahid", as shown in Ext. 2. In fact, Exts. 2 was not executed by Wahid alone, but also by his two full sisters and in case defendants alleged the said deed not to have been executed by Wahid, it was open for them to get his signature on Ext. 2 compared with his admitted signature, which was not done. In my opinion, Court of appeal below wrongly applied Section 114(g) of the Evidence Act in drawing presumption against the plaintiff for withholding the said disbursement register. In the present case the plaintiff was relying upon Ext. 2, which was admittedly more than 30 years'' old document, admissible in evidence u/s 90 and when the defendants denied execution thereon by Wahid it was for them to prove it. Presumption u/s 114(g) is always one of fact depending upon the whole set of facts. Defendants completely failed to prove that Ext. 2 was not executed by Sk. Wahid.

In the aforesaid circumstances, I set aside the impugned judgment and decree dated 17.4.1999, passed by Court of appeal below and confirm judgment and decree passed by trial Court, in Title Suit No. 159 of 1989. In the result, this appeal is allowed.

Appeal allowed.