Shah Hiralal Gordhandas and others vs Shah Parshottamdas Muljibhai and another

S.H. Sheth, J.—This second appeal has been filed by the original plaintiffs. The facts of the case, shortly stated, are as under.

There Is a Chawk or Khadki land belonging to the plaintiffs and the defendants. The defendant No. 1 soma time prior to the institution of the suit by the plaintiff applied to the Petlad Municipality for permission to construct a floor on a part of the said Khadki land at the first floor level leaving the ground-floor portion open for passage by both the parties. The Municipality granted the permission. On having come to know of the grant of the permission to the defendant No. 1 the plaintiff lodged objections with the Municipality. The Municipality thereupon cancelled the permission by its order dated 28th June 1961. Yet. the defendant No. 1 proceeded ahead with the construction. Therefore, the plaintiffs filed the present suit on 6th July 1961 praying for a permanent injunction restraining the defendant No. 1 from constructing or putting up a structure at the first floor level on the said Khadki land.

In defence the defendant No. 1 admitted that the ground-floor portion of the Khadki land was of joint ownership of the parties. The plaintiffs and the defendants have a common ancestor. It was further pleaded by him that the partition of the joint family properties had taken place some four or five generations back. At that time the ancestor of the defendant No. 1 had been allotted to his share, amongst others, the upper floor which had then been standing on a part of the Khadki land. He further averred that it had fallen down and that he was reconstructing it. He. therefore, contended that the plaintiffs had no right to obstruct. The defendants Nos. 2 and 3 have been supporting the defendant No. 1.

The learned Trial Judge principally relied upon two documents Exhibits 84 and 72 and upheld the claim made by the defendant No. 1. He. therefore, dismissed the plaintiffs suit.

The plaintiffs appealed to the District Court The learned Extra Assistant Judge who heard the appeal confirmed the findings recorded by the learned Trial Judge and dismissed the appeal

It is that appellate decree which Is called in question in this second appeal by the plaintiffs.

In the instant case oral evidence has no value whatsoever because none of the parties has any personal knowledge of what happened many many years ago. The oral evidence led by them, therefore, is purely formal and it, therefore, need not be considered. Both the learned advocates have argued their respective cases on the strength of the documentary evidence on record. Exhibits 84 and 72 are two documents which appear to militate against the plaintiffs* contention. Exhibits 56. 57. 58. 59. 61, 62 and 63 are the documents which are said to support the plaintiffs'' case. Exhibit 79 is the map prepared by the Court Commissioner. It shows the Khadki land in question. The area bound by red-dotted lines marked LMNOPQ is the area representing the Khadki land at the first floor level the defendant No. 1 has been trying to put up a structure. I take Exhibit 84 first Exhibit 84 appears to be a memo of partition It seems to have been prepared on Fagan Sud 3 of S. Y. 1830 which roughly corresponds to 1774 A.D. This document is not signed by the parties. It has not been attested. Even the scribe of the document has not appended or written his name at the end of the document Under these circumstances the document has been exhibited not because it has been proved by evidence but by raising presumption of proof u/s 90 of the Evidence Act

Mr. Patel. appearing for tide plaintiffs, has challenged the admissibility of this document on the ground that the circumstances which attend upon this document do not bring it within the framework of Section 90 and that, therefore, the Courts below were in error in admitting that document in evidence. It is, therefore, necessary to turn to the provisions of Section 90 of the Evidence Act. The material portion of Section 90 is in the following terms?

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 the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

The rest of Section 90 is not material for the purpose of the present case. The document, Exhibit 84, appears to have been written sometime in 1774 A.D. It therefore, purports to be thirty years old. It has been produced by the defendant No. 1 in whose custody it ordinarily should be. Two of the ingredients prescribed by Section 90 for raising the presumption are. therefore, satisfied. When these two ingredients are satisfied it is open to the Court to presume that the signature which purports to be in the handwriting of any particular person is in that person''s handwriting. It is further open to the Court to presume that every other part of that document which purports to be in the handwriting of any particular person is in that person''s handwriting There is no signature which this document bears. Therefore, the question of raising the presumption as to the genuineness of the signature of the executant does not arise in the instant case. The document does not state who has written it. It does not bear even the name of the scribe. It is. therefore, difficult to raise the presumption that it is in the handwriting of any particular person in whose handwriting it purports to have been written. Since the name of the scribe has not been written and since the executants have not signed it, it is difficult to raise any presumption as to its genuineness u/s 90 of the Evidence Act. In my opinion, a bald document which is 30 years old and which is produced from proper custody does not attract the presumption u/s 90 of the Evidence Act if it is unsigned, unattested and if it does not bear the name even of its scribe. Section 90 does not contemplate such documents and does not empower the Court to raise any presumption in respect of them. The latter part of Section 90 which deals with the question of executed or attested documents has, in the facts and circumstances of the present case, no application whatsoever. In my opinion, therefore, since the terms of Section 90 of the Evidence Act are not satisfied in the instant case by Exhibit 84 which has been described by Mr. Bhatt as a memorandum of partition. I am unable to raise any presumption as to its genuineness. There is no other proof of the document whatsoever. The result, therefore, is that the Courts below, in my opinion, were in error in admitting that document. I am of the opinion that the said document Exhibit 84 is inadmissible in evidence and must be ruled out of consideration.