C.M. Lodha, J.
1. This is a defendant's second appeal arising out of a suit for declaration that the plot of land in dispute situated in Nagaur belongs to the plaintiffs, and also for possession of the same.
2. The plaintiffs, who are the followers of 'Khatargachh' sect of Nagaur through their trustees Bhanuar Chand and others filed the suit in the court of civil Judge, Nagaur on 20.3.1955 alleging that the plot in question belonged originally to one Ibrahim Kheradi, and others, who sold the same to Chadwa Gulani Mohammed, Imam Bux etc. for Rs. 125/- on Maha Badi 13, 8. 1881 by a sale deed which has been placed on the record and marked Ex. 6 Gulam Mohammad and others obtained a 'Patta' of this land in their names, a copy of which also has been placed on the record by the plaintiffs and has been marked Ex. 2. The plaintiffs go on to state that on Asoj Badi 9.8.1901 Gulam Mohammad and others mortgaged this plot with possession in favour of Guran Heerachand; Roopchand and Khemchand of 'khatargachh' sect of Nagaur and executed a will their favour; (marked Ex. 5), The plaintiffs had also pleaded that even otherwise they succeeded as heirs to Guran Roopchand and thus became the owners of the plot in question. The plaintiffs further alleged that en 19.7.1948; they made an application for grant of, Patta' of the land in question in their favour to which the defendants who are the managers of Masjid Khari, situated in Teliwada, Nagaur filed an objection. The objection was dismissed and later on the plaintiffs' application for grant of, Patta' which was also dismissed. It is stated that taking advantage of the dismissal of the plaintiffs' application for 'Patta' the defendants unlawfully encroached upon the plot in question on 2. 1957 by fixing 'Pattis' on it and also applied to the Municipal Board, Nagaur for grant of permission to raise construction over the land. In these circumstances the plaintiffs brought the present suit for the reliefs already mentioned above.
3. The defendants Ayub and others denied the plaintiffs' claim and pleaded that, the documents relied upon by the plaintiffs in their plaint were forged. They also pleaded that the land in question has been in possession of Masjid Khari since generations. The trial court framed 16 issues on the pleadings of the parties and after recording their evidence decreed the Plaintiffs' suit both for declaration as well as possession. Aggrieved by the judgment and decree of the trial court the defendant filed appeal in the court, of District Judge, Merta but were unsuccessful and have therefore filed this second appeal.
4. Mr. M.M. Vyas, learned Counsel for the appellants urged in the first instance that the suit had been filed by Khatargachh sect of Nagpur through its trustees which it is not, a legal entity and is therefore not maintainable. On the other hand, Mr. Parekh learned Counsel for the respondents also raised a preliminary objection that 'khatargachh' sect which was the plaintiff and in whose favour the decree had been passed by the lower court has not been impleaded a party to this appeal, but Bhanwarchand and others have been impleaded as respondents in their personal capacity and not even as trustees of 'Khatargachh' sect, and, therefore, the appeal is not maintainable. I do not see any force in the aforesaid contentions raised by the learned Counsel for both the parties. The suit has been brought by Bhanwar Chand and others as trustees representing the Khatargachh sect of Nagaur and the procedure prescribed under Order 1 Rule 8, C.P.C. was followed. In these circumstances it cannot hi said that the frame of the suit is wrong. As regards to the objection by, the learned Counsel for the respondents, it is correct that Khatargachh sect of Nagaur has not been mentioned in the array of respondents, nevertheless, the trustees in whose favour the decree has been passed have been impleaded as respondents in the case and it maybe reasonable to presume that they have been impleaded in the capacity of trustees or representatives even though they have not been described as such in the title of the memo of appeal. I am, therefore, of opinion that the appeal is not liable to be thrown out on the ground of non-joinder of necessary parties.
5. The next argument advanced by Mr. Vyas is that the documents relied upon by the plaintiffs viz. the sale deed-Ex. 6, pattas Ex. 2 and 3, the mortgage deed Ex. 7, the will Ex. 5 and rent notes Ex. 12 and 13 and 15 have not been proved by any evidence, and the trial court did not exercise its discretion judiciously in raising presumption regarding the due execution of these documents under Section 90 of the Evidence Act. It is submitted that there was definite plea raised by the defendants that these documents are forged and, therefore, it was the duty of the plaintiffs to prove their execution or at any rate to show that these documents have been in existence for 30 years. In this concection it was also submitted that in was the duty of] the trial court to have given opportunity to the defendantsto 1 ad evidence in rebuttal after it had made up its mind to raise presumption regarding the execution of these document in the plaintiff's favour In support of his contention the learned Counsel has relied upon Ramchandra v. Usman Gani ILR 3 Raj. 292 & Inder Singh v. Board of Revenue ILR 12 Raj. 83.
6. On a perusal of the record it transpires that arguments in the case were heard by the trial court on 25.7.1962, and the case was adjourned for further arguments to 28.7.1962. Before that on 27.7.1962, the plaintiffs made an application that the documents referred to above were ancient documents and no evidence was available regarding their execution. It was there fore, prayed that a presumption may be drawn in respect of these documents under Section 90 of the Evidence Act. A notice of this application was given to the defendants to which they filed a reply that no such presumption should be drawn with respect to these documents under Section 90 of the Evidence Act. After hearing the counsel for both the parties the trial court held that presumption may be made in respect of these documents under Section 90. It may be noted here that in the reply filed by the defendants to the plaintiffs application it was no where stated that in case the Court was inclined to raise presumption under Section 90 of the Evidence Act, the defendants may also be given an opportunity to lead evidence in rebuttal. Not only that, even in the grounds of appeal submitted before the District Judge, the defendants did not ask for an opportunity to rebut the presumption raised by the trial court in respect of the aforesaid documents Under Section 90. Even during the course of arguments before the first appellate court no such opportunity was asked for. In these circumstances it is not open to the defendants to agitate in this Court that they had not been given sufficient opportunity to rebut the presumption made by the trial court in favour of the plaintiffs. Learned Counsel for the appellants submitted that the court was bound to give an opportunity to the defendants to lead evidence in rebuttal, the moment it made up its mind to raise presumption in favour of the plaintiffs irrespective of the fact whether such an opportunity was asked for by the defendants or not? In this connection learned Counsel relied upon Shrinath Patra v. Kuloda Prasad Banerjee 2 CLJ (1905) 592. I have carefully gone through this case and do not find any thing therein which may lend support to the contention raised by the learned Counsel. Woodroffe J. observed as follows:
The proper procedure in cases of this kind is that the party who relies upon a document which is over thirty years old should tender the document under Section 90 of the Evidence Act. It is then for the Court to determine, which is a matter of judicial discretion, whether it will make the presumption mentioned in the Section or will call upon the party to offer proof of the document. If the Court calls for such proof it should, I think, state the grounds upon which it refuses to exercise the discretion which is conferred upon it by that section, in order that the Court of appeal may be able to judge whether that discretion has been judicially passed. If on the other hand the document is accepted, the court should in that judgment state or indicate whether the presumption has been rebutted or has been displaced.
The procedure for raising presumption under Section 90 of the Evidence Act, if I may say so with respect has been clearly brought out in these observations. But it has nowhere been laid down that an opportunity to lead evidence in rebuttal of the presumption must be given to the party even though he has not asked for it. More ever so far as the present case is concerned; the defendants had not raised this point before the first appellate court and therefore it is not open to them to press this point in this Court at such a late stage.
7. Another branch of argument in this connection is that at any rate the plaintiff; should have proved the existence of the documents in question for more than 30 years. It is submitted that if a document dates 30 years back, that by itself is not conclusive for the purpose of drawing presumption. In support of the date appearing on the document it is argued, that its existence for 30 years must be proved. This contention was also not raised by the defendants either in the trial court or in the first appellate court That apart, the question arises whether it is obligatory for a party relying on Section 90 of the Evidence Act to invariably prove that the document has been in existence for 30 years even though it dates back 30 years or more. In this connection it may be useful to refer to the language of Section 90 of the Evidence Act. The opening words of this Section indicate that in order that the presumption may be drawn, one of the essential conditions is that the document purports or is proved to be 30 years old. If there is proof that the document has been in existence for more than 30 years, then there is no room for any argument. However, if there is no proof but the document purports to be 30 years old, i.e. it states itself to be 30 years old or more, then too the presumption can be drawn. It must, however, be borne in mind that this is a presumption of fact which is discretionary for the Court to draw or not to draw It is not a presumption of law, and the Court may exercise the discretion vested in it by not admitting a document without formal proof although it is more than 30 years old and comes from proper custody. It is for the Court to judge whether on the facts and circumstances of a particular case the presumption should be drawn or not. If it appears to the Court that the document is not free from suspicion or is a fabrication or for any other reason the Court thinks in exercise of its judicial discretion that the presumption should not be drawn, it may refuse to raise the presumption under Section 90 of the Evidence Act. Nothing has been pointed out to me how the lower court has acted arbitrarily or capriciously in exercise of its discretion in raising the presumption in respect of these documents? Moreover it has not been challenged by the defendants that these documents have not been in existence for 30 years. Only a general plea was raised that all the documents relied upon by the plaintiffs are forged. This was hardly sufficient. Under the English law in the case of documents claimed to be 30 years old, it is not necessary for the party to prove that it has been so in existence unless impsached. If it bears date 30 years before its production, it is received as proof of that document when produced from proper custody Anderson v. Weston (1940) 133 ER 117. I do not see any reason why the same principle should not be followed while interpreting Section 90 of the Indian Evidence Act. It is well established that an appellate court will be slow to interfere with the discretion of the trial court as to the raising or refusing to draw the presumption. These documents were produced from proper custody, and learned Counsel failed to point out any circumstances before me which may lead one to believe that any of these documents were forged or were otherwise of a suspicious nature. I am, therefore, of the opinion that the lever courts did not commit any error in raising presumption under Section 90 of the Evidence Act in respect of these documents. It is needless to refer in detail to the authorities cited by the learned Counsel for the appellants as in my opinion they have no direct bearing on the point canvassed before me.
8. This brings me to another contention of Mr. Vyas that it has not been proved that the documents referred to above pertain to the land in question. The 'Pattas' Exs. 2 & 3 mention the boundaries as well as the measurements of the plot in question. P.W. 4 Kasam has admitted that the land in question is situated to the south of the house of Ayub which tallies with the site-plan Ex. 1. To the same effect is the statement of P.W. 5 Rahim Bux. The identity of the land is also clearly established by the mortgage deed Ex. 7, and the will Ex. 5. After a careful discussion of the evidence be by both the parties the learned District Judge has come to positive finding that the documents relied upon by the plaintiffs pertain to the land in question and the learned Counsel has failed to point out how this finding of fact is vitiated I, therefore, do not see any substance in this contention of the learned Counsel either.
9. Lastly, it was contended that the plaintiffs had not come into possession of the land in question at any point of time and that the possession of the defendants since generations had been established. The learned District Judge has discussed in detail the various documents relied upon by the defendants and has held that the rent notes Ex. A. 1 Ex. A. 2 Ex. A 3 and Ex. A. 4 have not been proved Similarly he has held that the plaintiff's possession over the land in question before the alleged dispossession on 2.11.1957 has been proved by the -oral evidence as well as rent note Ex. P.W. 15/6. The ancient documents relied upon by the plaintiffs and referred to above also constitute presumptive evidence of the possession of the plaintiff; and their predecessors in title. Moreover this is, a question of fact and learned Counsel has failed to show how this finding of fact is liable to be reversed in second appeal. It was argued the observation made by the lower court that the stamp of Ex. A. 3 (rent note) was purchased on a date subsequent to the date on which it purports to have been written is incorrect as the lower court has miscalculated the dates. Nothing can be said definitely on this point. But it is needless to enter into this controversy as the learned District Judge has also held at the same time that Ex. A. 3 is not proved as neither the scribe nor the attesting witnessess nor the executant of Ex. A. 3 have been produced, and, therefore, on this reasoning alone Ex. A. 3 cannot be relied upon by the defendants.
10. As a result of the foregoing discussion I do not find any force in this appeal and the same is rejected with costs.
11. Learned Counsel for the appellants prays for grant of leave to Division Bench. But I do not Consider it a fit case for grant of leave. The prayer is disallowed.