HAZARILAL Vs. SHYAMLAL

JUDGEMENT

(1.) THIS appeal has come up before the Division Bench on reference by the learned Single Judge. The reference runs as under: " Whether the law laid down in the judgments of Lalit Kishore vs. Laxminarayan (1968 RLW 308), Ayub & Ors. vs. Bhanwar Chand & Ors. (ILR (1971) 21 Raj. 30) and Rao Raja Tej Singh vs. Hastimal (1972 RLW 133) is correct law and what can be the stage at which presumption can be raised under Section 90 of the Indian Evidence Act, 1872) and any matter which may be found relevant for just decision of the case relating to the raising presumption under Section 90 of the Indian Evidence Act by the appropriate Bench. "

(2.) THE appeal is yet to be decided on merit. Also, having regard to the limited scope of reference, it is not necessary to state the facts of the case in detail except to mention that this appeal by the plaintiff arises from a suit for declaration of title and permanent injunction. THE appellants claim title by adverse possession. THE cause of action for filing the suit was a decree of eviction obtained by respondent No. 1 Shyamlal against respondent No. 2 Chhogalal and respondent No. 3 Chothmal. According to respondent No. 1 he is owner of the premises. He had let out the same on rent to respondent No. 2 on 29. 5. 1956. Respondent No. 2 inducted respondent No. 3 as sub-tenant. Shyamlal filed suit No. 136/1967 and obtained decree for eviction against them. According to Shyamlal, the appellant had been set up by Chothmal to pre-empt the eviction decree.

(3.) BEFORE answering the question we may refer to the meaning of the expressions "may presume", "shall presume" and "conclusive proof" in Section 4 of the Evidence Act as under:- " 4. "may presume" - Whenever it is proved by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. " Shall presume" - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. " conclusive proof".- When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. "