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PETITIONER: SRI LAKNI BARUAN AND OTHERS

       Vs.

RESPONDENT: SRI PADMA KANTA KALITA & ORS.

DATE OF JUDGMENT:       26/02/1996

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) HANSARIA B.L. (J)

CITATION:  1996 AIR 1253            JT 1996 (3)   268  1996 SCALE  (2)644

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.N.RAY,J.      Leave granted. Heard learned counsel for the parties.      This appeal is directed against Judgment dated December 17, 1993  passed by  the High  Court of  Guwahati is  Second Appeal No.46  of 1993.  By the  aforesaid Judgment, the High Court dismissed  the appeal  preferred against  Judgment and decree dated  March 29, 1993 passed by the learned Assistant District Judge.  Sonitpur  in  Title  Appeal  No.7  of  1992 reversing the  Judgment and  decree dated  February 28, 1992 based by  the learned  Munsif. Tezpur  passed in  Title Suit No.55 of 1981.      Shri Pushpa  kanta kalita  and Shri Padma Kanta Kalita, namely plaintiff Nos.1 and 2. instituted Title Suit No.55 of 1981 in  the Court  of  learned  Munsif  at  Tezpur  against defendants Smt.  Aikon Baruan, Soni Dakshi Baruah, Shri Basu Baruah, Shri  Jiban Baruan  and Smt.  Sonmai  Baruan  for  a declaration that  the plaintiff No.1 was the sole and lawful owner of  the lands  in Schedule  A to  the plaint  and  for further declaration that the registered Sale Deed of 1950 of 1950 of Tezpur was forged, null and void and was inoperative so far  as the  plaintiff No.1  was concerned and also for a declaration that plaintiff No.2 had right title and interest in the  lands as  described in  Schedule B  to the plaint by virtue of  his purchase  of the  said lands  from  plaintiff No.1. The prayer for consequential relief by way of delivery of the possession of the suit property to the plaintiff No.2 after evicting  the defendants  from the said lands was also made.      The case  of the  plaintiff, inter  alia was  that  one Sumitra Kalitani  was the  sole and  absolute owner of lands measuring about  7 bighas 3 kathas 12 lachas comprised under Old Dag  Nos.624, 790,  780, 796,  788,  816,  818  and  986 appertaining  to   Old  Peritdic  Patta  No.239  of  village Dekasunder, Mouza  Borpnagia in  the District Darrang, Assam

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with an  ancestral house  on a  portion of  the said  lands. Plaintiff No.1  Shri Pushos Kanta Kalita was born to Sumitra on March  14, 1979  in the  said village  Dekasunoer but the said Sumitra  Kalitani died  within about  two three  months from the  date of  birth of  Pushpa Kanta.  Father of Pushpa Kanta, Thalluk,  also died  after about  four years  and the plaintiff No.1  Pushpa Kanta  was thereafter  brought up and maintained by his grandmother (mother’s mother). late Japari Kalitani, in  the said ancestral house upto the age of 8 and 9 years  of the  plaintiff No.1. Thereafter, the said Jadari Kalitani also  died and  plaintiff No.1 became an orphan and there was  no one  to  look  after  him  and  his  aforesaid properties of  which  he  became  owner  by  succeeding  the interest of his mother Sumitra Kalitani, Taking advantage of the helpless  condition of plaintiff No.1. Pushpa Kanta, one Holiram Baruan,  since deceased  and husband  of  respondent No.1. started  torturing the  plaintiff No.1  with mala fide intention of wrongfully graphing the properties of plaintiff No.1. As  a matter  of fact,  on one  occasion the plaintiff No.1 was  mercilessly deaten  by  the  said  Holiram  Baruan causing fracture  and dislocation of back and wrist pone for which the  plaintiff No.1  became partially disabled. Coming to know  of such torture meted out to the plaintiff No.1 his paternal uncle  Shri Kaminath Bora had brought the plaintiff No.1  to  the  residence  of  Kaminath  at  village  Magnab, Borhampur, in  order to  ensure security  of plaintiff No.1. The plaintiff  No.1 remained  there  till  he  had  attained majority and  also  for  some  more  years.  Tnereafter,  he acquired some  lands at  village Hatinga Rampur and had been living in  the said  village hatinga Rampur with the members of his  family by  constructing a house. The lands and house of the  plaintiff No.1 at village Dekasundar were used to be looked after by Smt.Japari kalitani his matrenal grandmother till her  death and  thereafter by  the uncle  of  plaintiff No.1. Kaminath  Sora till  plaintiff attained  majority. The plaintiff No.1  after attaining  majority had  been managing and enjoying the entire property at Dekasunder by exercising actual physical  control and  the name of plaintiff No.1 had also been mutated in respect of the said lands.      Plaintiff No.1  thereafter sold  and transferred  lands measuring 1  pigna 19  lessas described in Schedule B to the plaint  to  Shri  Padma  kanta  kalita,  plaintiff  No.2  by registered Deed  of Sale  No.1553  of  1980  for  a  sum  of Rs.3,000/-  and   delivered  possession  of  such  lands  to plaintiff No.2  who had  been possessing  and occupying  the same since  after purchase.  The said Padma Kanta Kalita got his name  mutated in  respect of the lends purchased by him. It was averred in the plaint that the defendants being heirs of Holiram Baruan, since deceased, had their houses near the suit lands  and the  said defendants  were  the  persons  of desperate  nature.  Taking  advantage  of  living  near  the disputed lands,  the said  defendants with the helo of their men illegally  and forcefully  trespassed  into  B  Schedule lands on  February 15,  1981 with an ulterior motive to grad the said properties and started to prepare kuchha bheti of a temporary house.  For such  alleged illegal  activities, the plaintiff No.2  made a  complaint out  of  which  proceeding under Section  145 Criminal Procedure Code was initiated. It is the  further case  of the  plaintiffs that  in  the  said proceeding under Section 145 Criminal Procedure Code, it was disclosed that  the defendant  No.4 had filed an application in February,  1981 before the Settlement Officer, Darrang at Tezpur for cancellation of mutation of the name of plaintiff No.2 in  respect of  Schedule B lands and the said defendant No.4 had  also made  a prayer in his petition dated February

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11, 1981  before the  Settlement Officer for mutation of his name  by   alleging  that  his  father  Holiram  Baruan  had purchased the  said lands  by registered  Sale Deed No.78 of 1950 from  the  plaintiff  No.1.  The  plaintiff  thereafter caused search  and contained  the certified copy of the said alleged  registered  deed  of  sale  from  the  Sub-Registry Officer at  Tezpur on  March 13, 1981 and it transpired from the said  certified copy  that a  purported  sale  deed  was executed by  the plaintiff  No.1 in favour of Holiram Baruan thereby conveying  2 bighas  2  kathas  6  lessas  of  lands described in  the Schedule  A to  the plaint  in  favour  of Holiram Baruan. The plaintiff stated that on the date of the said alleged  sale by the plaintiff No.1, namely, on January 1, 1950  in favour of Holiram Baruan, the plaintiff No.1 was a minor  and he  did not  execute the above Sale Leed or any document  in   favour  of  holiram  Baruan.  The  plaintiffs thereafter contended  that the registered Sale Deed No.78 of 1985 was  a forged, null and void document by which no title had passed to holiram Baruan or any successor in interest of Holiram Baruan.  As the title to the suti lands was disputed by the  defendants, the  aforesaid suit  for declaration  of title and  recovery of possession by evicting the defendants had been instituted by the said plaintiffs.      The defendants  contested the  said suit  by filing the written  statements,   inter  alia,   contending  that   the plaintiffs had  no cause of action. The defendants contended that the  plaintiff No.1  executed the  said registered Sale Deed in  favour of  Holiram and  delivered possession of the lands sold by him to the said Haliram and on the date of the execution of  the Sale  Deed, the  plaintiff No.1  was not a minor but  was aged  about 25  years.  The  defendants  also contended that the sale deed in favour of plaintiff No.2 was invalid and  the plaintiff  No.1  having  no  title  to  the disputed lands  on the  date of  transfer could not transfer the B  Schedule lands  to the plaintiff No.2. The defendants also contended  that ever  since the  aforesaid purchase  by Holiram Baruan  in 1950,  he had exercised possession of the lands and  thereafter the defendants had been possessing the said lands.  The defendants  also denied  that the plaintiff became an  pronaan at  a tender  age and  Holiram Baruan had ever committed any act of torture on plaintiff No.1.      After considering  the case  of  the  parties  and  the evidences adduced,  the learned  Munsif  by  Judgment  dated April 4, 1992, inter alia, came to the finding that the Sale Deed dated  January 1,  1950, executed  by plaintiff No.1 in favour  of   Holiram  Baruan  was  a  genuine  document  and plaintiff No.1 was major at the time of the execution of the Sale Deed.  In view of such finding, the learned Munsif held that there  was no  necessity to  examine  the  question  of limitation for  the maintainability of the suit. The learned Munsif also  declined to accept certain documents which were sought to  be filed  by the  plaintiffs to prove the date of birth  of  the  said  plaintiff  No.1.  The  learned  Munsif dismissed the said suit.      The  plaintiff  No.2.  predecessor-in-interest  of  the present respondents,  thereafter preferred Title Appeal No.7 of 1992  in the  Court  of  the  Assistant  District  Judge, Sonitour. The  learned Assistant  District Judge  considered the School Certificate issued on March 31, 1946 in favour of the  plaintiff  No.1  and  came  to  the  finding  that  the plaintiff must  have been  born in  1934 and  at the date of execution of  the said sale deed in favour of Holiram Baruan in 1950,  the plaintiff  No.1 was  minor. The  learned Judge also came to the finding that the document of sale stated to have been  executed by  plaintiff No.1  in favour of Holiram

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Baruan was  forged, null  and valid. The Judgment and decree of the  learned Munsif  were set aside and the suit filed by the plaintiffs was decreed by the learned Assistant District Judge. The  appellants thereafter  preferred a Second Appeal No.46 of  1993 before  the High Court of Guwahati and by the impugned Judgment  dated December  17, 1993,  the High Court dismissed the appeal.      Mr. Goswami,  learned Senior  counsel appearing for the appellant, has submitted that plaintiff No.1 Puspa Kanta was major on the date of execution of the sale deed in favour of Holiram. Even  if the  findings  of  the  learned  Assistant District Judge  that Pushpa Kanta plaintiff No.1 was born in 1934 and at the time of execution of the deed of sale by him in favour  of Holiram  he  was  minor  are  accepted  to  be correct, the  said Pushpa Kanta had attained majority within a few  years after the sale. The title suit was filed by the plaintiffs  in   1981.  Hence,   such  suit  was  parred  by limitation. Question  of limitation  strikes at  the root of maintainability  of   the  suit.   Hence,  the   courts  has imperative duty  to go  into the  question of maintenance of the suit on the score of its being parred by limitation.      Mr. Goswami  has submitted that when the suit was filed in 1981  the document  of sale executed by plaintiff No.1 in favour of  Holiram in  1950, was  more than  30  years  old. Presumption of  valid execution of such old document arising under Section  90 of  the Evidence  Act was in favour of the defendants. Hence,  the contention of the plaintiffs that no such deed  had been executed by the plaintiff No.1  could be accepted. The  trial court  had rightly held that it must be resumed that  the deed  of sale  had been  executed  by  the plaintiff No.1. Once such execution by the plaintiff No.1 is accepted, it  must be  held that plaintiff No.1 was required to get  such deed  executed by him to be avoided by filing a suit within  the  period  of  limitation.  Mr.  Goswami  has submitted that  the said  deed  of  sale  was  a  registered document and  certified copy  of the  same was  filed in the suit. He  has submitted that the High Court has erred in not giving the  presumption  flowing  from  Section  90  of  the Evidence Act  only because certified copy was filed. He has, therefore, submitted that gross injustice has been meted out to the appellants and the appeal should therefore be allowed by setting  aside  the  impugned  judgment  and  decree  and dismissing the suit filed by the plaintiffs.      Mr. Ganguly,  learned Senior  counsel appearing for the respondents, has  however disputed  the contentions  of  Mr. Goswami.  Mr.   Ganguly  has  submitted  that  the  plea  of limitation has  no basis  because execution of the sale deed by the  plaintiff No.1  in favour  of Holiram  has not  been established. Mr.  Ganguly has  submitted that the custody of disputed sale deed must by with the defendants. Presumptions as to  document being  thirty years  old is not available in respect of the certified copy of the document. In this case, execution by plaintiff No.1 was denied. The plaintiffs could have established  the case of fabrication and forgery of the said deed  of sale  if the original document would have been produced. In order to evade the risk of being detected about commission of  forgery in  respect of  the signature  of the plaintiff No.1,  the defendants deliberately did not produce the original  sale deed. Mr. Ganguly has therefore submitted that no  interference is  called for  in this appeal and the same should be dismissed with cost.      After nearing  the learned  counsel for the parties and considering the  judgments of the courts below and materials on record,  it appears  to us  that there is no dispute that Pushpa Kanta  succeeded to  the title  to the  properties in

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suit  by   way  of  intestate  succession  of  his  mother’s interest. The defendants admitted such position but the case of the  defendants is  that Pushpa  Kanta had  conveyed  his right title  and interest in the disputed property in favour of Holiram, the predecessor-in-interest of the defendants by executing a  Sale Deed  in 1950.  Such  claim  of  title  by Holiram and  his successors-in-interest  is disputed  on the ground that  plaintiff No.1  Pushpa Kanta  was minor  on the date of  alleged sale  deed and he had not executed any such sale deed in favour of Holiram and such deed is a product of forgery and fabrication.      In the  aforesaid facts,  defendants were  required  to establish that  Pushpa Kanta  had in fact converted title by executing the sale deed as alleged. The deed of sale was not sought  to   be  proved  by  leading  evidence  about  valid execution of  the same or payment of consideration by Pushpa Kanta in  favour of  Holiram by  examining proper witnesses. But an  attempt was  made to prove the execution of the said deed of sale with the aid of Section 90 of the Evidence Act. Since the  alleged sale  deed was more than thirty years old on the  relevant date,  presumption of due execution of same flowing from  Section 90  was relied  upon. The  trial court accepted the  case of  execution of  a sale  deed by  Pushpa Kanta in  favour of  Haliram on  the  basis  of  presumption arising from Section 90 of the Evidence Act; but the learned Assistant District  Judge and  the High  Court did not allow the claim of presumption in favour of valid execution of the said deed  of sale  by indicating  that presumption  flowing from Section  90 was not available because the original SALE Deed was  not placed  before the  Court. If the Sale Deed on which the  defendants base  their title is not prayed, there is no  occasion for interference with the impugned judgment. It is,  therefore, necessary to consider whether presumption flowing from Section 90 was available to the defendants.      It will  be appropriate  to refer  to Section 90 of the Evidence Act which is set out hereunder :      Section  90   Presumption   as   to      documents thirty  years old - 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 person by whom      it  purports  to  be  executed  and      attested. Section 90  of the  Evidence Act is founded on necessity and convenience because  it is extremely difficult and sometimes not  possible   to  lead   evidence  to  prove  handwriting, signature or  execution of  old  documents  after  lapse  of thirty years.  In order  to  obviate  such  difficulties  or improbabilities to  prove  execution  of  an  old  document, Section 90  has been incorporated in the Evidence Act, which does  away   with  the  strict  rule  of  proof  of  private documents. Presumption  of genuineness  may be raised if the documents in  question is  produced from  proper custody. It is, however,  the discretion  of the  Court  to  accept  the presumption flowing  from Section  90. There is, however, no

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manner of  doubt that  judicial discretion  under Section 90 should not  be exercised  arbitrarily and not being informed by reasons.      So far  as applicability  of presumption  arising  from Section 90 of the Evidence Act in respect of copy of the old document is  concerned, the  earliest decision of the Indian Court was  made in  1880 in  Khetter vs. Khetter Paul (ILR 5 Calcutta 886).  Later on,  in the  decisions of various High Court  the  presumption  under  Section  90  was  also  made applicable to  the certified  copy. The  Privy Council, upon review of  the authorities,  however,  did  not  accept  the decision rendered in khetter and other decisions of the High Court, where the presumption was attached also to copies, as correct. It was indicated that in view of the clear language of section  90 the  production of  the  particular  document would be  necessary for  applying the  statutory presumption under Section  90. If  the  document  produced  was  a  copy admitted under  Section 65  as secondary evidence and it was produced from  proper custody and was over thirty years old, then the signature authenticating the copy might be presumed to be genuine: but production of the copy was not sufficient to justify  the presumption of due execution of the original under Section  90. In this connection, reference may be made to the  decisions in  Seetnayva Vs.  Subramanya (56 IA 146 : AIR 1929 PO 115) and Basant VS. Brijri (AIR 1935 PO 115). In view  of   these  Privy  Council  decision,  disproving  the applicability of presumption under Section 90 to the copy or the certified  copy of  an old  document, in  the subsequent decisions of  the High Courts, it has been consistently held by different  High Courts  that production  of a  copy or  a certified copy  does not raise the presumption under Section 90.      The  position   since  the   aforesaid  Privy   Council decisions being  followed by  later decisions  of  different High Courts  is that  presumption under  Section 90 does not apply to a copy or a certified copy even though thirty years old: but  if a  foundation is  laid  for  the  admission  of secondary evidence  under Section  65 of the Evidence Act by proof of  loss or  destruction of  the original and the copy which is  thirty years  old is preduced from proper custody, then only  the signature  authenticating the  copy may under Section 90 be presumed to be genuine.      In the  facts  of  this  case,  the  presumption  under Section 90  was not available on the certified copy produced by the  defendants and,  in our  view,  the  High  Court  is justified in refusing to given such presumption in favour of the  defendants.  We  may  also  indicate  that  it  is  the discretion of  the Court  to refuse to give such presumption in favour  of a  party, if  otherwise, there  is occasion to doubt  due  execution  of  the  document  in  question.  The plaintiffs definite case was that the deed of sale in favour of Holiram  was a  forged and  fabricated document.  In  the aforesaid facts,  there was  a requirement  to  produce  the original copy  so that  the question  of  due  execution  by plaintiff No.1 could have been contested by the parties.      In the  aforesaid facts,  no interference is called for in this appeal and the appeal is dismissed with cost.