MAGANMAL Vs. UJJANMAL

JUDGEMENT

(1.) THIS second appeal by the plaintiffs arises out of a suit for possesetion.

(2.) THE plaintiffs filed a suit alleging that a plot of land belonging to Veerchand Lakhaji, existed towards the south of their house situate at village Nadol. The plaintiffs obtained patta of their house on 15 -2 -50 from the erstwhile thikan Ganarao as village Nadol was one of the Jagir village of thikana Genarao in the Former State of Marwar. The plaintiffs further alleged that the defendants purchased the plot belonging to Veerchand Lakhiji and thereafter illegally encroached upon the land adjacent to the plaintiff's land measuring 6 1/2' x 12 1/4' marked EFGH in the site -plan Ex. P.2. The plaintiffs therefore prayed for decree for possession of the land marked EFGH in the site -plan Ex. P. 2 The defendants admitted having purchased the plot of land from the successor of Veerchand Likhaji, namely, Himmatmal on 31 -1 -50 for Rs. 651/ -. They further pleaded that the land marked as EFGH in EX. P.2 was part and parcel of the land purchased by them, from Himmat Mal. Some more pleas were ralsed by the detendants which would be clear from the following issues framed by the trial court: ...[VERNACULAR TEXT OMITTED]... The trial court on consideration of the evideace led by the parties decided J issues Nos. 1 to 4 against the plaintiffs and issues Nos. 5 and 6 in favour of the plaintiffs. In the result, the trial court dismissed the suit. On appeal by the plaintiffs, the learned Senior Civil Judge, Sirohi. affirmed the finding of issues Nos. 1, 2, 3 and 4 and dismissed the appeal. Hence this second appeal.

(3.) THE learned counsel for the respondents has next urged that the discretion exercised by the trial Court and the first appellate court in presuming the genuineness of the paeta Ex. D/2 under Section 90 of the Evidence Act should not be interfered with in this second appeal. It is true that ordinarily the High Court in Second appeal would be slow to interfere with the discretion exercised by the lower courts in the matter of presumption under Section 90 of the Evidence Act, but the discretion allowed by this section is a judicial discretion which has to be exercised on sound legal. principles Since, in the Present case the discretion has been exercised perversely without due consideration of the facts and circumstances of the case, the High Court has in my opinion, the right to interfere with the exercise of such discretion in second appeal. Instances are not lacking when in suitable cases the High Court in second appeal has so interfered with the exercise of discretion raising presumption under Section 90 of the Evidence Act by the courts below.