BABU NANDAN Vs. BOARD OF REVENUE

JUDGEMENT

(1.) BACHAI . respondent No. 4, filed a suit for partition under Section 49 of the U. P. Tenancy Act regarding plot No. 207 area. 58 acres situate within the Municipal limits of Jaunpur city. Res pondents Nos. 2 to 8 along with Babu Nandan. petitioner No. 1, were defendants to the said suit. Bachai plaintiff claim ed one-fifth share in the disputed land on the ground of his being son of Ramesh-war. The petitioner- defendants contested the suit. Their main contention was that Bachai respondent No. 4 (plaintiff) was tarail son of Rameshwar and, as such, he was not entitled to any share in the land in suit. According to the plaintiff the land in suit was ancestral, coming down to the family from Chhaggu. father of Rameshwar. Bachai and defendants were sons of Ramestiwar and, as such, he claimed one-fifth share. Bachai further relied upon a permanent lease executed by the ex-zamindars in favour of Babu Nandan on 6th September. 1944. confer ring certain additional rights on the tiff and Babu Nandan and others I the defendants') in the suit and petitioners in the present petition, were described as sons of Rameshwar. The trial court dis missed the suit; on appeal the lower ap pellate court decreed it. A second appeal was filed by the petitioner-defendants be fore the Board of Revenue which was dismissed by an order dated 8th Janu ary, 1970 and the plaintiff's suit was decreed. By means of the present peti tion Babu Nandan and others who were defendants to the suit, have challenged the legality of the judgment of the Addi tional Commissioner and the Board of Revenue.

(2.) LEARNED counsel for the peti tioners assailed the judgment of the Board of Revenue and the Additional Commissioner mainly on the ground that both the courts had committed an error of law in placing reliance upon the lease dated 6th September, 1944, as the said lease had never been proved according to law and was not admissible in evidence. He further contended that in view of subsection (2) of S. 90-A of the Indian Evidence Act the presumption available to a registered document more than twenty years old was not available in the present case as the plaintiff Bachai had relied upon the said lease in the plaint as the basis of his title. Lastly, the learned counsel urged that if the lease deed was excluded, there was no evidence On record to support the findings record ed by the Board of Revenue and the Additional Commissioner, that Bachai was son of Rameshwar and. hence, entitled to one-fifth share in the land in dispute.

(3.) LEARNED counsel for the peti tioner has urged that the lease deed dated 6-9-1944 -was not admissible in evidence as the same had not been proved accord ing to law. The Commissioner as well as the Board of Revenue placed reliance on the lease deed in recording a finding that Bachai was son of Rameshwar. Peti tioner's contention about the admissibi-lity of that document was repelled by the Commissioner as well as the Board of revenue on the ground that since the document was registered and more than twenty years old. it did not require formal proof. Section 90 of the Indian Evidence Act as amended in its applica tion to the State of Uttar Pradesh, lays down that where any document purport ing or proved to be 20 years old, is pro duced from any custody which the court in a 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 per son's handwriting and its execution and attestation shall also be presumed. What is a proper custody is clarified by the explanation attached to Section 90. The U. P. Legislature has added sub-sec. (2) to S. 90 which runs as under:-