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Ram Milan and ors. Vs. Sher Bahadur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 558 of 1964
Judge
Reported inAIR1976All251
ActsEvidence Act, 1872 - Sections 90
AppellantRam Milan and ors.
RespondentSher Bahadur and ors.
Appellant AdvocateH.D. Srivastava, Adv.
Respondent AdvocateM.R. Misra, Adv.
DispositionAppeal dismissed
Excerpt:
.....alleged to be thirty year old presented before court - court refused to presume execution of document - reasons for not raising presumptions given by court - held, court not obliged to presume and finding of court below based on not raising presumption cannot be set aside. - - 3. trial court dismissed the suit on the finding that the plaintiffs had failed to prove either their ownership or possession over the trees. the lower appellate court has, on consideration of the evidence on record, come to the conclusion that the plaintiffs had failed to prove their title. 7. there is also the finding that the plaintiffs had failed to prove their possession over the trees in dispute. 8. about damages also there is the finding of the courts below that the plaintiffs had failed to prove..........of the document if it had been led in the court, but, as the appellate court has said, there is no evidence to prove the execution of the document on the date it is alleged to be executed.6. section 90 of the evidence act runs as under:'where any document, purporting or proved to be thirty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly exe-cuted and attested by the person by whom it purports to be executed and attested.' it gives an option to a court to presume or not to presume. of course, the.....
Judgment:

Hari Swaroop, J.

1. This is a plaintiff's appeal arising out of a suit for an injunction restraining the defendants from interfering with the plaintiffs' possession over certain trees and for damages.

2. Plaintiffs filed the suit on the allegation that seven trees had been purchased by the plaintiffs from one Dayal in 1906, four trees were planted by them in 1962, and fruits of the trees werewrongly appropriated by the defendants causing damage of Rs. 100/-. Defendants denied the plaintiff's ownership or possession over the trees.

3. Trial Court dismissed the suit on the finding that the plaintiffs had failed to prove either their ownership or possession over the trees.

4. Lower Appellate Court upheld the findings and dismissed the plaintiff's appeal against the trial court's decree dismissing the suit.

5. This appeal is concluded by findings of fact. The lower appellate court has, on consideration of the evidence on record, come to the conclusion that the plaintiffs had failed to prove their title. A document purporting to be a sale deed executed by one Dayal was relied upon by the plaintiffs. The courts below did not place any reliance on this document in the sense that they did not raise any presumption in favour of the plaintiffs about the due execution of the document under Section 90 of the Evidence Act. The courts below have given valid reasons for taking this view. One of the reasons is that the paper was not purchased by any of the parties concerned but by an unconcerned third person. The other reason which the courts have given is that it appeared that the document was written after the paper had got its folds. Learned counsel contends that the court could not assume the role of an expert and record the finding either that the document was written after the folds had been made or that the ink used was not as old as the document purported to be. No doubt court cannot assume the role of an expert but it can certainly look into the evidence as it exists. The observation may not have been sufficient for disbelieving the testimony of the plaintiffs about the execution of the document if it had been led in the court, but, as the appellate court has said, there is no evidence to prove the execution of the document on the date it is alleged to be executed.

6. Section 90 of the Evidence Act runs as under:

'Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly exe-cuted and attested by the person by whom it purports to be executed and attested.'

It gives an option to a court to presume or not to presume. Of course, the court is normally to presume due execution of a document purporting to be thirty years old, but it is not obliged to presume it it has reasons not to presume. In the present case, the court has given reasons for not raising presumption under Section 90 of the Evidence Act. As these reasons are not irrelevant, the finding of the court below based on not raising the presumption under Section 90 cannot be set aside.

7. There is also the finding that the plaintiffs had failed to prove their possession over the trees in dispute. This finding is based on oral testimony led in the case. This is a pure finding of fact. On the basis of this finding also the suit for injunction was not maintainable.

8. About damages also there is the finding of the courts below that the plaintiffs had failed to prove damages.

9. In the result the appeal fails and is dismissed with costs.


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