1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO. 196 OF 2009 (Yadao Laxmanrao Meshram and others .v. Buddha Sitaram Meshram and another) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri S.S. Joshi, Advocate for the appellants. Shri A.A. Sambaray, Advocate for the respondents. CORAM : A.P. BHANGALE, J. 11TH NOVEMBER, 2009. Heard the learned Counsel appearing on behalf of the respective parties. By this Second Appeal under Section 100 of the Code of Civil Procedure, the appellants (original plaintiffs) are seeking to challenge the judgment and order passed in Regular Civil Appeal No. 192 of 2005 which was decided on 07.08.2007 by the learned Ad hoc Additional District Judge-10, Nagpur whereby the appeal was dismissed. Earlier, it appears that the plaintiffs had instituted Regular Civil Suit No.449 of 1993 which was decided by 7th Joint Civil Judge, Junior Division, Nagpur on 2nd March, 2005, whereby the trial Court dismissed the suit filed by these appellants (original plaintiffs). The learned Counsel for the appellants raised substantial question of law as under :- “Whether a document can attain maturity of thirty years during pendency of the suit in order to raise presumption under Section 90 of the Indian Evidence Act as to genuineness of the document ?” 2 Heard submissions with reference to impugned judgment and order as also the judgment and order passed by the learned trial Court. It is not in dispute that one Motiram Meshram died in the year 1960. His son Sitaram had predeceased him in the year 1945-46 while his son Sakharam had died in the year 1981 issueless. His wife had predeceased him. While third son Laxman had also expired somewhere in the year 1990 leaving behind him his widow Chandrabhaga (plaintiff No.4) and sons Yadao, Soma and Raju (plaintiff Nos.1, 2 and 3). The subject matter of the suit appears to be house property bearing Corporation House Nos.10 and 11 situated in Ward No.12 (old)-New Ward No. 32, Near Lakdi Pool Police Chowki, Juni Mangalwari, Nagpur. It appears that the relationship between the parties was not disputed and there were concurrent findings regarding the fact that the plaintiff Nos.1 to 3 were cousin brothers of defendant Nos. 1 and 2, as also that donor Sakharam was admittedly the son of Motiram Meshram and died issueless in the year 1981. The house bearing Nos.10 and 11, admittedly the ancestral property, was partitioned orally between Motiram and his three sons and house No. 11 was equally partitioned between Sakharam and son of late Sitaram. The contentions regarding document of gift dated 14.07.1972 gave rise to issue as to whether the defendants became the owners of the suit property by virtue of said gift deed which 3 appears to have been accepted as duly proved document in view of presumption proving from Section 90 of the Indian Evidence Act. The question raised before this Court as to whether the said document of gift can attain maturity of thirty years during pendency of the suit. It cannot be disputed that under Section 90 of the Indian Evidence Act, where any document, purporting or proved to be thirty years old, is produced before the Court, the Court may presume that the signature on 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 executed and attested by the persons by whom it purports to be executed and attested. It appears that in the trial Court, the presumption was considered in the light of ruling of the Apex Court reported in Sri Lakhi Baruah and others .v. Sri Padma Kanta Kalita and others AIR 1996 SC 1253, indicating reasons as to why such presumption is invoked by using judicial discretion. It becomes extremely difficult by passage of time to lead evidence about the author of the document or proving the document by examining author thereof as also attesting witnesses. Therefore, strict rule of legal proof in respect of private documents need not be resorted to be as the Court can use judicial discretion to accede such document which appears thirty years or more old. 4 It appears that the trial Court accepted the gift deed (Exh.62) purportedly executed on 14.07.1972 as thirty years old documents thereby dispensing with normally insisted strict legal proof in respect thereof. Thus accepting validity of the gift deed, the issue as to title or ownership of the suit house was answered in favour of the defendants, after finding that there was no evidence led to the contrary by the plaintiffs before the trial Court. The learned Counsel for the appellants submitted that the word “may” used in Section 90 of the Indian Evidence Act is indicative of discretion of the Court which may or may not be used for presumption regarding thirty years old document. Further, according to him, the suit was instituted on 01.03.1993 and it was decided on 2nd March, 2005. Therefore, in view of the long pendency of the suit, the presumption ought not to have been raised by the trial Court as also by the first appellate Court. On the other hand, the learned Counsel for the respondents made reference to ruling Kesarapu Manikyalu .v. Venna Perumallayya (died) and others (reported in AIR 2000 NOC 20 (ANDHRA PRADESH) = 2000 AIHC 590) and submitted that the period of thirty years for raising presumption under Section 90 is to be computed from the date of execution of the document to the date on which the document was sought to be put into evidence. Therefore, where the suit challenging genuineness of the document which was filed 28 years later after its 5 execution was sought to be proved, however, the period of thirty years was over on the date on which the document was sought to be put into evidence, the presumption under Section 90 was raised. Thus, the question raised by the learned Counsel for the appellants appears to have been answered in the affirmative in the said ruling. Therefore, in the facts and circumstances of the case, considering that the registered document was executed on 14.07.1972 and the trial Court had decided suit on 2nd March, 2005 after raising presumption on the ground that this thirty years’ old document is admissible in view of Section 90 of the Indian Evidence Act as also concurrent finding recorded by the Court of first instance and the first appellate Court in the judgment and order impugned herein, considering that the Courts below had relied upon the document of gift deed in accordance with law. The substantial question of law raised accordingly, must be answered, thus, the document of registered gift deed sought to be proved can attain maturity of thirty years old during the pendency of the suit when it is sought to be put into evidence. The concurrent finding recorded by the Courts below as also restrictive jurisdiction of this Court to entertain the Second Appeal, it must be observed that the concurrent findings, howsoever erroneous, cannot be disturbed by the High Court in exercise of the powers under Section 100 of the Code of Civil Procedure as it is not within the domain of 6 the High Court to investigate the grounds on which findings were arrived at by the last Court of facts (first appellate Court). Looking to the judgments of the Courts below, it appears that the presumption was raised in accordance with law correctly and, therefore, no interference is necessary in the instant Second Appeal. Second Appeal stands dismissed as such. JUDGE *rrg.