JASWANT SINGH Vs. DHANNA

JUDGEMENT

(1.) THE appellant Jaswant Singh who was defendant No. 5 in the suit filed by Dhanna respondent was the Jagirdar of the fields covered under Bera Partalia consisting of two Dhanas. This land was in the Bapi of the respondent Dhanna and he was in possession as a Bapidar from time immemorial upto the year 2003. In 2004 it is alleged that Geegla, Ghisiya, Chunia Dhaniya and Bhagiya forcibly dispossessed him and till 2010, Kana, Kanhiya, Amra, Hemla, Geegala, Girdhari, Ghisiya, Jetha Hema etc. on their behalf remained in unlawful possession. THE aforesaid defendants No. 1 to 4 took unlawful possession, defendant No. 5 who is appellant Jaswant Singh before us, is colluding with them and is preventing him from taking possession of his Land. He prayed for ejectment of these trespassers under sec. 183 of the Rajasthan Tenancy Act. THE suit was filed on the 1st of February, 1956. THE case of the appellant-defendant was that the Bapi rights of the piaintiff were purchased in Smt. 2002 for Rs. 300/-by Jaswant Singh appellant from the Boharas. THE plaintiff had, therefore, no right on the land in dispute.

(2.) IT is a common ground that when the Marwar Tenancy Act came into force the remedy was available to the plaintiff. The only question for determination in this respect would be whether in such a case sec. 94 or sec, 97 was applicable. The plaint nowhere has stated that the plaintiff-respondent Dhanna was dispossessed by his landlord without lawful authority. His trespassers were persons other than the landlord. In this case it was sec. 94 of the Marwar Tenancy Act which was applicable and as under sec. 124 of the Marwar Tenancy Act read with item 13 of the second Schedule, a suit could be brought for the ejectment of a person occupying land without lawful authority in ejectment or for damages within six years, the suit was within six years, the suit was within limitation when the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act came into force. In a case of a rank trespasser, item 12 of the Revenue Courts (Procedure and Jurisdiction) Act would apply and the period of limitation would be 12 years.

(3.) WE find from the judgment of the trial court that he has not given any presumption of genuineness to this document. On the other hand, he has relied on the evidence of some of the witnesses to show that its execution had been proved. This aspect of the matter we shall examine later. The appellate court has not also relied on this document and has held it to be fictitious. When both the trial and the first appellate courts have not given any presumption of truth to the documents Ex. D. 3 and D. 4 we, in second appeal, are certainly not competent to give presumption of genuineness to this document, according to the rule laid down in the authorities mentioned above. WE, on the other hand, think that there are certain factors in this case which will cast doubt on raising presumption of genuineness to this document under Sec. 90 of the Indian Evidence Act. In the first place, the document is not signed or thumb marked by the alleged executant, the mother of the respondent Dhanna. Secondly, the only attesting witness they could find in whole of the village was Rajmal Bohara, one of the vendees. Thirdly, no consideration for the alleged sale has been indicated. Fourthly the executant namely, the mother of the respondent Dhanna does not say that she was executing the document on behalf of her son in a case of legal necessity. The only point in favour of the appellant in this case is that the document was produced from the custody of the appellant who took it from the Boharas.