: 1 : sa.342.2010 vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.342 OF 2010 a/w CIVIL APPLICATION NO.890 OF 2010 IN SECOND APPEAL NO.342 OF 2010 Smt.Gulab Bharat Patil .. Appellant V/s. Pedru Anton Bastav & Ors. .. Respondents Mr.S.M. Mirajkar for the Appellant Ms.Pallavi N. Dabholkar for the Respondents CORAM: SMT.NISHITA MHATRE, J. DATED: DECEMBER 20, 2011 P.C.: 1. The appeal has been directed against the judgement and order of Civil Judge Junior Division, Vasai passed in RCS No.3 of 1995 which has been confirmed in Regular Civil Appeal No.153 of 2007. By a concurrent finding of fact, both the Courts below have held that Laxmi i.e. the mother of the appellant was a gratuitous licensee and, therefore, the appellant had no right in the suit property. 2. A notice was issued on 24.9.1994 by the plaintiff i.e. the respondent herein to the appellant indicating that he had in his : 2 : sa.342.2010 possession the writing executed by Laxmi on 11.7.1987 to the effect that she was a gratuitous licensee and that after her death her heirs would not be entitled to the suit property. Two years later, defendant No.1 i.e. the appellant herein had filed a suit against the respondent for an injunction on the ground that she was not a trespasser but a tenant in the suit property. That suit was withdrawn by the appellant on 20.9.1996 as the respondent herein agreed not to evict her without following the due process of law. The present suit was filed thereafter by the respondent/plaintiff to evict the appellant from the suit premises. 3. The main contentions of the learned advocate for the appellant are (i) that the writing on which respondent No.1 laid emphasis and claimed that Laxmi had executed the same had not been proved in accordance with the provisions of the Indian Evidence Act; and (ii) that assuming the execution was proved, the contents were not proved. 4. This document has been exhibited at exhibit 49 by the trial Court. In his evidence the plaintiff's constituted attorney has stated that the document at exhibit 49 was executed in his presence, that Laxmi has affixed her thumb impression on the same in his presence and that the document was read over to her before it was executed. : 3 : sa.342.2010 5. The learned advocate for the appellant has submitted that under the provisions of section 68 of the Indian Evidence Act, the document ought to have been proved by examining an attesting witness. However, the learned advocate was unable to demonstrate that Exhibit 49 was a document which required attestation in accordance with law. Therefore, the submission that the proof of such a document would be governed by the provisions of section 68 is without merit. 6. The learned advocate then submitted that the document ought to have been proved in accordance with law by relying on the judgement in the case Gangamma & Ors. vs. Shivalingaiah, (2005) 9 SCC 359. This judgement was in relation to the scope of the presumption which can be drawn u/s 90 of the Indian Evidence Act. The Court has held that such a presumption extends merely to the authenticity of the handwriting contained in the document or its execution or its attestation. A formal execution of the document though proved would not by itself lead to the presumption that the recitals contained therein are also correct. This judgement in my view has no application to the facts in the present case. There is no need to draw any presumption as available under section 90. Indeed, such a : 4 : sa.342.2010 presumption cannot be drawn as the document at Ex.49 is not more than 30 years old. The document was required to be proved like any other document. The respondent's witness has not only proved its execution but also its contents. 7. In the present case, the learned advocate for the appellant has tried to submit that the thumb impression of Laxmi has not been identified and therefore it could not be considered to be genuine. As mentioned earlier, the plaintiff’s witness has stated that the thumb impression appended to exhibit 49 is that of Laxmi and that it was affixed in his presence. The appellant has at no point of time disputed the thumb impression by leading cogent evidence. The appellant was well aware of this writing having been executed by Laxmi in the year 1994 when she was issued a notice to vacate the premises by respondent No.1 on 24.9.1994. Even in the suit filed by her, which was withdrawn subsequently, the appellant did not care to dispute the thumb impression and instead withdrew her suit i.e. RCS Suit No.239 of 1994. 8. In these circumstances, in my opinion, no substantial question of law arises for determination in the Second Appeal. By a concurrent finding of facts, the Courts below have held that the appellant is a trespasser inasmuch as her mother Laxmi was a gratuitous licensee : 5 : sa.342.2010 and therefore she could have no right over the suit property after her mother's demise. 9. Second appeal is therefore dismissed. 10. In view of the above, Civil Application No.890 of 2010 also does not survive and the same is dismissed as such. (SMT.NISHITA MHATRE, J.)