POONAM CHAND Vs. MOTILAL

JUDGEMENT

(1.) THIS is a first appeal by the plaintiff, Poonamchand, in a suit under Order XXI Rule 63 of the Civil Procedure Code.

(2.) THE facts giving rise to it are that defendant No. 3 Sunderlal and No. 4 Daudas had a decree against defendant No. 5 Gulab Das, and in execution of that decree, they got an attachment of a house situated in Bhootron-ka-Vas at Pokaran. THE description of that property is given in para No. 2 of the plaint and need not be repeated here. THE plaintiff presented an objection petition under Order XXI, Rule 58 of the Civil Procedure Code. THE decree-holder contested that application on the ground that the house originally belonged to defendant No. 1 Motilal, that he and his mother Mst. Dhapi defendant No. 2 had sold it to Sangidas Beharial, who were father and grandfather respectively of the judgment-debtor, Gulabdas, defendant No. 5. THE plaintiff's objection-petition was dismissed. THEreafter the attached property was put to auction and pruchased by defandant No. 6 Hemraj.

(3.) LEARNED counsel for appellant has urged that if these documents were produced by defendants No. 1 and 2, it could by said that they were in proper custody; but since they have been produced by the decree-holder defendant No. 3. his custody cannot be said to be proper. This argument is not tenable because defendant No. 3 has come into the witness-box and stated on oath that he had got these documents from Sangi-Das, father of defendant No. 5. The witness has stated that the present house was once attached in execution of a decree of one Kishniram. At that time, Sangi Das had filed an objection petition. The witness had helped Sangi Das in engaging a Vakil and at that time, he had got these documents from him, and since then they were in his possession. This explanation given by the witness is not unnatural or unbelievable. Sangi Das had purchased the house from defendants Nos. 1 and 2 and naturally these documents should come in his possession from defendants 1 and 1. If the witness was helping Sangidas in the previous case, there was nothing extraordinary if he was entrusted with these documents. The second part of the explanation set out above shows that custody is not improper origin. In the present case, defendant No. 3 has proved by his own statement on oath how he had come in possession of these documents. According to this statement, the origin of his possession is quite legitimate. There is no evidence to the contrary to show that his possession had an illegitimate origin. The legitimacy of the origin of the plaintiff's possession also finds support from illustration (c) to sec. 90 which runs as follows : - " (c) A. a connection of B, produced debts relating to lands in B's possession which were deposited with him by B for safe custody. The custody is proper. " In the present case also, defendant No. 3 has stated that these documents were given to him by Sangidas and, therefore, his custody cannot be said to be improper, The trial court, therefore, did not commit any error in raising a presumption about these documents under sec. 90 of the Indian Evidence Act. As shown above, these documents were twice produced in the courts, in the years 1906 and 1928. The plaintiff has not given any evidence to show that any doubt was cast on them ever before. Under the circumstances, the trial court rightly held that partition between the ancestors of the plaintiff and defendant No. 1 had taken place as early as Svt. 1924 and the house in dispute had gone to the share of the first defendant's grandfather.