HIRACHAND Vs. STATE

JUDGEMENT

(1.) This revision has been filed under sec.34 of the Marwar Patta Act against an order of the Additional Commissioner, Jodhpur, dated 3 -11 -54. The applicants applied for the patta of a house situated in Jaitaran to the Tehsildar, Jaitaran, on 1 -4 -54. They alleged that the house had been in their possession from before Svt. 1947. The Tehsildar after enquiries recommended to the Collector that since the applicants had not been able to prove their possession from before Svt. 1947 the patta may be issued in their favour on payment of the present site value calculated at Re.l/ - per square yard plus a fine of Rs.100/ - under sec. 36 of the Marwar Patta Act. The applicant filed an objection against this order before the Collector, Pali, who overruled it and sanctioned the issue of a patta as recommended by the Tehsildar. On appeal before the Additional Commissioner, he however, reduced the cite value from Re. 1/ - to As. 10 per sq. yard and upheld the order of the Collector as regards the payment of full site value and fine. The applicant has now come in revision before this Board.

(2.) I have heard the counsel for the parties and have also examined the record of the case. Shri Mannalal urged on behalf of the applicants that the lower courts had failed to appreciate the import of sec. 90 of the Indian Evidence Act and had wrongly held the rent notes of Svt. 1943 and 1955 produced by the applicants in support of their old possession as not proved and that the amount of fine, viz. Rs. 100/ - imposed under sec. 36 of the Act was excessive. As regards the first contention, no doubt, the applicant produced two rent notes purporting to have been executed in Svt. 1943 and Svt. 1955 by Kheta Ram and Chobey Champalal respectively in respect of the house in dispute in favour of Gadmal Chimnilal and Chimnilal Indermal whom the applicant claims to be their ancestors. Under sec. 90 of the Indian Evidence Act when a document purporting or proved to be 30 years old is produced from proper custody, three presumptions arise in respect of it, viz. that the signature and every other part of the document which purports in the handwriting of any particular person is in that persons handwriting, that the document was executed by the person by whom it purports to have been executed and that the document was testified by a person by whom it should have been testified. There is also a presumption that the document was prepared at the time it purports to have been prepared. But there is no presumption as to the contents of the document and the section cannot be so used as to dispense with the formal proof of the contents of the document. In this case the rent notes purporting to have been executed by the tenants in favour of the applicant have been produced from their custody. The effect of presumption is in the first place weakened by the circumstance that the documents are neither registered nor attested by any witness and no evidence has been led on the point whether the alleged executants of the document are still alive or have died. Besides this no evidence is available on record to show that the possession of the applicant on the property in question has been continuous since then. The lower courts were, therefore, justified in not attaching any presumption to these documents.

(3.) As regards the amount fine, the notification issued under Rule 36 (1) of the Marwar Patta Act, 1921, clearly lays down that if the application for patta is made after one year of the expiry of the period prescribed by Rule 10, the amount of fine would be Rs. 100/ -or five times the actual fees chargeable on account of the patta fees, which ever is less. The fees chargeable in this case have been held to be about Rs. 45/ -. The amount of fine imposed, namely Rs. 100/ - is therefore, in accordance with the rules. The applicants counsel invited my attention to notification No. 2816 which a discretion is given to the Mahakma Khas (now Board of Revenue) to reduce the amount of fine in any case coming before it if it considers that the imposition of full fine operates hardly on the applicant and requested that the powers given by this notification be exercised in his clients favour. I am afraid, he has not been able to show that the amount of fine will operate hardly upon his client or that there is any other justification for reducing it. There is thus no force in this revision which is hereby rejected.