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Rameshwar Prasad & Another v/s Harinarain & Others

    Civil Second Appeal No. 230 of 1984

    Decided On, 04 August 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE MOHAMMAD RAFIQ

    For the Appellants: K.K. Chhawal, Counsel. For the Respondents: D.K. Dixit, Counsel.



Judgment Text

1. This is defendant's second appeal filed against judgment and decree dated 06.04.1984 passed by learned Additional District Judge, Dausa, whereby it confirmed judgment and decree dated 12.05.1978 of learned Munsiff, Dausa, who decreed the suit of plaintiffs and declared the sale-deed dated 11.01.1972, which was in favour of defendant no.1, as ineffective against plaintiff and further issued an injunction restraining defendants from interfering with possession and use of disputed property.

2. Seven plaintiffs, who were all sons and daughters of deceased Rampratap, filed aforesaid suit on 10.05.1972, inter-alia, with pleading that their father Rampratap had purchased a house situated in Mohallah Agarikawala of Laslot, from one Balabux, the father of defendants no.1 and 2 Jagdish Prasad and Rameshwar Prasad, by sale-d

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eed dated 10.12.1942. When defendants no.1 and 2 pressurized the plaintiffs to resale the house to them, the plaintiffs denied. With a view to grabbing the house, those defendants behind the back of plaintiffs executed a sale-deed and got the same registered in favour of defendant no.3 Ramgopal on 11.01.1972. Defendant no.3 wanted to forcibly take possession of the house which was resisted by the plaintiff's family. Hence the suit was filed praying for aforesaid declaration and injunction.

3. Defendants filed a common written statement asserting therein that defendants no.1 and 2 were owner and title-holder of the disputed house. They have their own rights to sale the house to defendant no.3 and put him in possession thereof in accordance with the law. Defendant no.3 has every right to take possession, occupy and make use of the said property. Sale deed dated 11.01.1972 for consideration of Rs.1000/- was registered by defendants no.1 and 2 in favour of defendant no.3. It was prayed that the suit be dismissed.

4. Learned trial court framed as many as seven issues. Burden of proof of issues no.4, 5 and 6 was on defendants but their counsel did not press the same before trial court. For rest of the issues, burden of proof was on plaintiffs and those issues were decided in their favour. It was held that possession of disputed house was with plaintiffs and that this house was purchased by their father vide sale-deed dated 10.12.1942 (Exhibit-2) from father of defendants no.1 and 2. The sale-deed (Exhibit-2) is a document of more than 30 years old therefore presumption about its correctness under Section 90 of the Evidence Act was raised that it was executed in favour of Rampratap, father of plaintiffs, by Mathuralal and Balabux, fathers of defendants no.1 and 2. Sale consideration of the house was also duly passed on. Since sale consideration was only Rs.85/-, at the relevant time its registration was not necessary. However, execution was found proved. Learned trial court recorded its finding of possession against defendant no.3 though he claimed to be in possession, and in favour of plaintiffs. The appellate court affirmed those findings.

5. Learned counsel for appellants has argued that learned courts below have erred in law in raising a presumption about correctness in respect of both, the sale-deed dated 10.12.1942 (Exhibit-2) and receipt (Exhibit-3) merely because both happen to be thirty years old documents, under Section 90 of the Evidence Act. Basic requirements of law in this respect have been given a complete go by. Exhibit-3, the receipt, was forged one wherein date of execution is mentioned as Asoj Budhi Teej of Samvat 2023, which is corresponding to 02.10.1951, whereas the date 02.10.1951 had fallen on Asoj Sudhi Dooj of Samvat 2008 and Asoj Budhi Teej of Samvat 2023 fell on 02.10.1966. Stamp papers were purchased on 10.02.1950 and title is mentioned as receipt dated 10.02.1948, which has been overwritten to indicate 02.10.1951. The document is full of discrepancies and therefore could not be relied on. Both the courts below have erred in law in accepting such documents in evidence as genuine. If the later date of this document is taken into consideration, counting the date from the year 1972 when the suit was filed, the document cannot be considered to be of thirty years old and therefore presumption about its correctness was not correct. It is argued that sale-deed (Exhibit-2) would also meet the same fate. PW-1 Kailash Chand Sharma does not say anything about its being thirty years old. PW-2 Ramnath Mali also simply says that possession was with Harinarain and is being used for storing fodder and wood etc. on this land. The statements of these witnesses were absolutely vague and they do not say as to how they became owner. The impugned judgments suffer from infirmity calling for interference by this Court. The judgments be therefore set aside and the suit filed by the plaintiffs be dismissed.

6. This court while admitting the appeal vide its order dated 06.09.1988, framed following substantial question of law for consideration:-

"Whether the courts below were right in drawing presumption in respect of documents Ex.2 and Ex.3 even though the said documents on the face of it appear to be fabricated."

7. Learned counsel for respondents has opposed the appeal and submitted that documents, namely, sale-deed (Exhibit-2) and receipt (Exhibit-3) were very old documents and they cannot be said to be false and fabricated. Documents were produced from genuine custody and they were thirty years old at the time they were produced. Learned trial court was wholly justified in raising presumption about their correctness. Learned counsel submitted that in so far as sale-deed (Exhibit-2) is concerned, the defendant-appellants themselves have not alleged any discrepancy therein. Regarding the receipt (Exhibit-3) allegation of discrepancy is hardly believable. The document is genuine. This document has been found to be proved as genuine by both the courts below. This is a finding of fact which is not open to interference under Section 100 of the CPC. Learned counsel has taken the court through those documents available on record to bring home his argument. It was prayed that the appeal be dismissed.

8. I have given my anxious and thoughtful consideration to rival submissions and perused the material on record.

9. It is not in dispute that the documents, which have been relied on by learned trial court to decree the suit in favour of plaintiffs, pertain to the disputed house. There is no serious contest abut any discrepancy in so far as sale-deed (Exhibit-2) is concerned. However regarding the receipt (Exhibit-3), allegation of discrepancy is hardly believable. The document is genuine. This document has been found to be proved as genuine by both the courts below.

10. Question whether or not those documents are genuine or not, but since a presumption has been raised about said documents with reference to Section 90 of the Evidence Act, I have carefully examined those documents. This is a receipt of Rs.35/- prepared with reference to the total sale consideration of the house i.e. Rs.85/-. The apparent examination of the document does not show any discrepancy about the dates of its execution and year of English calendar vis-a-vis the Vikram Samvat. This was prepared in continuation of earlier deed of transfer. This was duly executed on 10.02.1950. The sale-deed (Exhibit-2) was executed on 10.12.1942 on which the possession was taken. The stamp paper of (Exhibit-2) contains the date, Bhadwa Sudi Teej of Samvat 1996, which is corresponding to year 1939. There was nothing irregular in execution of the sale-deed by use of such a stamp paper on 10.12.1942. For subsequent receipt, which is said to have prepared on Asoj Budhi Teej of Samvat 2023 which is corresponding to 02.10.1951. The sale-deed was executed on 02.10.1951. Minor discrepancy in regard to date given does not make a document inadmissible in evidence because otherwise also this document has been prepared on a stamp paper of the time issued on Bhadwa Sudi Teej of Samvat 2003 and is apparently a more than thirty years old document. Correctness of the date indicated therein is a question of fact and not a question of law and therefore I do not find any infirmity in either of two judgments.

11. In view of the above, I do not find any merit in this appeal and same is accordingly dismissed with no order as to costs.

Appeal dismissed.
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