Norat Mal @APPELLANT@Hash Bhanwar Lal And Ors

This second appeal is directed against the judgment and decree dated 15.09.2015 passed by Additional District & Sessions Judge, Kishangarh District,

Ajmer whereby the appeal filed by the appellant-plaintiff was dismissed and judgment and decree dated 18.03.2011 passed by Civil Judge (Junior

Division), Kishangarh, Ajmer, in Civil Suit No.20/2008 was confirmed.

Brief facts giving rise to this appeal are that a suit for possession on the basis of title was filed by the appellant-plaintiff wherein it was pleaded that

the suit property was purchased by the father of the appellant-plaintiff through a registered sale deed dated 11.12.1947. The defendant forcibly took

the possession of the suit property on 17.05.2000, therefore, the plaintiff is entitled to get the possession over the suit property.

The defendant resisted the suit by filing written statement wherein it is stated that plaintiff is not the owner of the suit property. On the contrary, the

defendant is in possession since the time of his forefathers.

On the basis of pleadings of the parties, learned trial court framed framed necessary issues.

Both the parties adduced oral as well as documentary evidence. Thereafter, the learned trial court vide judgment dated 18.03.2011 dismissed the suit

against which an appeal was filed and the same was dismissed by the learned Appellate Court vide judgment dated 15.09.2015.

Heard learned counsel for the parties.

It is argued by Shri V L Mathur, learned counsel for the appellant that judgment of both the courts below are based on total misreading and non-

reading of material evidence. It is submitted that the trial court has dismissed the suit on the basis that the plaintiff was not in possession. This finding

is contrary to law since the suit for possession has been filed, therefore, question of possession is irrelevant. It is submitted that in view of Section 90

of the India Evidence Act, contents of the document (Ex.1) should be deemed to have been proved and therefore, it is very well proved that the

plaintiff is the owner of the suit property. Both the courts below have not considered Section 90 of the ‘Indian Evidence Act’ in this regard,

therefore, this appeal should be admitted on the substantial questions of law formulated in the memo of appeal.

In support of his contention, learned counsel for the appellant has placed reliance on the judgments in the cases of Rao Raja Tej Singh & Ors. Vs.

Hastimal & Ors., reported in AIR 1972 Rajasthan 191 & Hazarilal & Anr. Vs. Sh. Shyamlal & Ors., reported in WLC 2007 (1) 789.

On the other hand, learned counsel for the respondents has supported the judgment and decree passed by both the courts below.

I have considered the rival submissions made by learned counsel for the parties and also considered the rulings cited by learned counsel for the

appellant.

It is revealed that plaintiff has utterly failed to prove his title over the suit land. It is also revealed that plaintiff filed a suit for permanent injunction prior

to filing of the present suit, which was dismissed. From the sale deed (Ex.-1), it is not proved that as to whom Noor Mohd. got title of the suit property

from. It is also not proved that possession was delivered by Noor Mohd. at the time of execution of the sale deed (Ex.1). There is nothing on record to

show that the suit was dismissed on the ground that the plaintiff is out of the possession.

The contention of the plaintiff-appellant is that the defendants-respondents took forcible possession over the suit property in the year 2000 is belied by

the fact that in the year 1986, a notice was given by plaintiff to the defendants that defendants have taken possession over the suit property and a

request was made to hand over its possession to the plaintiff. From this admission, it stands proved that the defendants have been in continuous

possession of the suit property for a long time and not from the year 2000.

In my considered view, Section 90 of the ‘Indian Evidence Act’ nowhere provides that in terms thereof the authenticity of the recitals contained

in any document is presumed to be correct. Even if a formal execution of a doucment is proved, the same by itself cannot lead to a presumption that

the recitals contained therein are also correct. In Rao Raja Tej Singh (supra) & in Hazarilal & Anr. (supra), it was not held that any presumption can

be drawn in respect of recitals and contents of the document in respect of 30 years’ old document. It was held in Hazarilal & Anr. (supra), that

presumption under Section 90 of the ‘Evidence Act’ can be claimed and drawn at any stage including the appellate stage.

Hon’ble Supreme Court in Union Of India Vs.Ibrahim Uddin & Anr., reported in (2012) 8 Supreme Court Cases 148, has held that no

presumption of truth of contents of the document can be drawn, only due execution and attestation can be presumed. Relevant para of the said

judgment is reproduced as under:-

“85.3. The alleged partition in the year 1819 among the ancestors of plaintiff/respondent No.1 even if had taken place, cannot be a proof of title of

plaintiff/respondent No.1 over the suit property as the pedigree has not been proved. Presumption under Section 90 of the Evidence Act in respect of

30 years’ old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it

does not give rise to presumption of correctness of every statement contained in it. The contents of the document are true or it had been acted upon

have to be proved like any other fact. More so, in case the will is ignored, there is nothing on record to show as how the plaintiff/respondent No.1

could claim the title.â€​

(emphasis supplied by me).

A perusal of the impugned judgments of both the learned courts below would reveal that while recording their

findings, both the learned courts below have properly appreciated the evidence available on record in accordance with law. Thus, the findings

recorded by the learned courts below being findings of facts require no interference of this Court in second appeal. This Court is of the view that no

question of law, much less any substantial question of law is involved in the instant second appeal.

In the light of the aforesaid discussion, this appeal is devoid of merits and liable to be dismissed and is dismissed accordingly.