RAMJILAL Vs. GEETA DEVI

JUDGEMENT

(1.) THIS revision arises from the order dated October 9,1996 of the learned Additional Civil Judge (Senior Division) Jhunjhunu whereby the application of the defendant-non-petitioner under Section 90 of the Evidence Act was allowed and presumption as to alleged thirty years old document was raised.

(2.) THE pleadings of the parties reveal following genealogy and facts: (i) THE plaintiff petitioner (for short the plaintiff) on June 29, 1983 instituted a suit for declaration and permanent injunction in their individual capacity as well as in the representative capacity on behalf of the inhabitants of Nan Hen Mahalla, Jhunjhunu. THE plaintiff pleaded in the plaint that `nohra' situated in the Mohallanan Mahela' Jhunjhunu is the property of the Temple Gopinathji Maharaj' as is popularly known as `bagichi'. For the last more than one hundred years this `nohra' has been used and utilised by the inhabitants of the area for the purposes of `satsang' Katha Vachan, reciting Bhajan and Dharmik Jagarans. A well and water tank also exist in the said Nohra. Ram Din, a predecessor of the defendants No. 2,3, 4 & 5 used to worship of the Idol of the said temple. After his death Management Committee of the Mohalla stated looking after Seva- puja of the Idol. (ii) In order to restrain the defendants from raising the construction over the said Nohra the plaintiff sought in the suit the relief of declaration and permanent as well as mandatory injunction. THE defendants on October 10, 1983 filed the wri-tten statement and pleaded that the Nohra neither belong to temple nor to Idol. Shri Shyam Sunder Shekhawat, the then Jagirdar of Bisau Thikana issued Patta in respect of said Nohra in favour of Ram Kishan Harlal, the predecessor of the defendants on Chait Sudi 15, Samwat 1862. THE Nohra is situated on the west side of the house of defendants and they have been using it since long. (iii) THE learned trial court framed issues and posted the case for recording the evidence of the plaintiff. THE defendants before the start of plaintiff's evidence, moved an application on September 23, 1996 under Section 90 of the Indian Evidence Act praying therein that a presumption be raised with regard to execution, writings seal and signatures on the Patta which is more than 30 years old document. THE plaintiff vigorously contested the application and contended that the said Patta was a forged document. In support of this contention the plaintiff made following references :- (a) Ramdin the father of defendants No. 1 to 5 executed a sale deed in respect of adjacent land before the Sub Registrar Jhunjhunu on June 12, 1961. In the said sale deed disputed Nohra was referred as belonging to temple. <DJG> (b) In another sale deeds of adjacent land, respectively executed on October 10, 1957 and September 2, 1958 the disputed Nohra was referred as belonging to Mandir Shri Gopi Nathji Maharaj.</DJG> (c) In civil suit No. 6/73 decided o <DJG> n June 4, 1993 by the Civil Judge (Senior Division) Jhunjhunu, a map (Ex. 2) was filed by Shyam Sunder (defendant) in which the disputed Nohra was shown as the property belonging to the temple Gopi Nathji Maharaj.</DJG> (d) Sita Ram son of late Ramdin on April 26, 1983 submitted an app- lication before the Municipal Board Jhunjhunu in a prescribed form wherein in the column of title he did not mention that the Nohra was his property. (iv) THE learned trial court vide its order dated October 9, 1996 allowed the application and raised presumption, with regard to correctness of writing and sig-natures of Har Govind, seal of Thikana and word `shree' of the Patta Miti Chaitra Sudi 15 Samwat 1862.

(3.) THE language used in the section indicates that the presumption raised is a permissive one. Though it is not obligatory on the court to raise the presumption,it is a matter of judicial discretion whether the court will make the presumption or call upon the party to offer other proof. If the document is suspicious on the face of it, the court need not draw the presumption at all. In the case of a document more than thirty years old, the genuineness of which is disputed, it is necessary for the court to consider the evidence, external and internal of the document in orderto enable it to decide whether in any particular case it should or should not presume proper signature and execution. THE law on the point has been laid down by their Lordships of the Privy Council in Shafiquannisa vs. Shaban Ali Khan It was propounded that where a document more than thirty years old, purporting to come from proper custody, is required by the court before which it is produced, to be pro-ved and is left unproved and there are circumstances, both external and internal, which throw great doubts upon the genuineness of the document the court can, in the exercise of the discretion vested in it under section 90, decline to admit it in evidence without formal proof.