First Appeal No.5 OF 1985 (Against the judgment and decree dated 31.7.1984 passed by Shri Aditya Saran, 2nd Additional Sub-Judge, Chapra, in Title Suit No.197 of 1974). 1.GANGA PD. SINGH 2.RANJIT KUMAR SINGH 3.DILIP KUMAR SINGH 4. RAVI PRATAP SINGH 5. BHANU PRATAP SINGH ………APPELLANTS VERSUS 1.MOST.BASRA KUER 2. JANAK SINGH 3. SHIR RAM JANKI DIETY THROUGH SITA RAM PANDEY 4. RAMJIT RAI 5.GORAKH SINGH 6.RUDRA NARAIN SINGH 7. SIRTI KUER ------RESPONDENTS P R E S E N T THE HON'BLE MR. JUSTICE PRAKASH CHANDRA VERMA P.C. Verma, J. This case was listed Yesterday under the heading for hearing and this court passed the following order. “This case is passed over for the day. If the learned counsel for the respondents does not appear tomorrow the Court shall proceed for final hearing of the case”. Today also learned counsel for the respondents is not present. The fact of the case, in brief, is that the plaintiffs have filed the suit for decree of partition and have claimed 3/4th share in Schedule 1, 2 and 3 properties. They have also prayed for appointment of a pleader commissioner who will carve out a separate takhta of their shares as indicated 2 above. Besides, they have also claimed costs. The plaintiff no.1 is the son of Ram Lakhan Singh. The other plaintiff nos.2 to 5 are the sons of plaintiff no.1 and grandsons of Ram Lakhan Singh. The defendant no.1 Besra Kuar, was the wife of Ram Lakhan Singh. The plaintiff has alleged in the plaint that Ram Lakhan Singh had two marriages and he was born out of the 1st marriage and mosst. Besra Kuer was the 2nd wife. Ram Lakhan Singh had one brother Ram Benu Singh who was joint. They separated after R. S. Ram Lakhan Singh died leaving behind his wife and the plaintiff who inherited the properties left by Ram Lakhan Singh. Ram Benu Singh died in the year 1962 in the separate state without any issue and his property was inherited by this plaintiff no.1 alone. Ram Lakhan Singh used to reside at Chapra and he helped plaintiff no.1 to study and actually he educated the plaintiff no.1 After study plaintiff no.1 entered into Military service. His own mother died before he entered into service. The plaintiff was also married at the instance of Ram Lakhan Singh who acted as a Samdhi. After the marriage, the wife of the plaintiff started living with defendant no.1. The plaintiff no.1 was also in service in Durga Talkies and then he also was in service to a Private Firm, Harihar Medical Hall, as a compounder and he is in service at Ranchi Namkum Factory. There he is residing with his family members. Whenever the plaintiff came to village Narainpur he resided 3 with defendant no.1 in his father’s house. The plaintiff also used to give money to defendant no.1 for cultivation. He also used to pay money to her step mother for her maintenance. The plaintiff also used to take the produce by dividing it with her step mother and he paid rent to defendant no.1 for his share who used to obtain receipts. When the plaintiff returned in October 1972 at village-Narainpur from Ranchi, he saw that the step mother has fallen in bad company of Sita Ram Pandey, Patiram Singh, Rudra Narain Singh and others and they had also instigated his step mother to deprive the plaintiff and his family from the ancestral house. The plaintiff had also asked his step mother to stop unnecessary expenditure which caused annoyance to his step mother. She had threatened to dispose of the ancestral property. She has also disposed of some of the properties. The ancestral properties have been described in Schedule in which the plaintiff has got 3/4th share and the defendant no.1 has got 1/4th share. The plaintiff is in joint possession along with defendant no.1. The plaintiff has also got 3/4th share in schedule 2 and 3 properties. When the plaintiff demanded partition, the defendant no.1 did not agree. Hence this suit. A separate W.S. has been filed on behalf of the defendant no.1 who has hotly contested the claim of the plaintiff. According to the defendant no.1 the plaintiffs have got no cause of action for the suit. They are not entitled to 4 get any relief the suit is barred by law of limitation that the suit is also barred by law of ouster and adverse possession. The plaintiff no.1 is not the son of Ram Lakhan Singh. He is the son of Ram Lobhi Singh who had kept a spouse and through that spouse this plaintiff no.1 has been born. One Rambarai Singh has set up the plaintiff no.1 to claim share in the property as the defendant no.1 did not agree to sale lands to Rambarai Singh. Ram Lobhi Singh was the father of plaintiff no.1. He had married this plaintiff and had educated him. The further case of this defendant no.1 is that her husband died in the year 1941-42 in the state of jointness with Rambenu Singh leaving behind this defendant no.1 as only legal heir. Late Ram Lakhan Singh had only one marriage. The late Ram Lakhan Singh was not married to any Faguni Devi. Therefore, this plaintiff has got no interest in the ancestral property. The further case of this defendant is that when Ram Lakhan Singh was ill at Chapra, he did not pay Govt. rent as a result some lands were sold in auction in Certificate Case No. 19/5 of 35-36. On Ramdahin Tiwary purchased the lands and was put in to possession. After some time the defendant no.1 purchased lands from Jiwanand Tiwary, the son of late Ramdahin Tiwary and she is in possession. She has also acquired title by adverse possession and this land has been described in schedule 1 of the W.S. Some of the lands which are in dispute were 5 sold by Rambenu Singh to Yuwa Raut and Yuwa Raut is in possession of that land and this land has been described in schedule-2 of the W.S. This defendant no.1 and her Dewar have also executed zer peshgi deeds which are mentioned in schedule 3 of the W.S. The zer peshgi dars are in possession. The suit suffers from the defects of the parties as the zer peshgi dars and the heirs of Yuwa Raut have not been brought on the record. The further case of the defendant no.1 is that late Ram Lakhan Singh always remained joint with Rambenu Singh. It is not disputed that Rambenu Singh died issueless but the plaintiff did not get any share in the land of Rambenu Singh as the plaintiff no.1 had no concern with the family. After the death of Rambenu Singh, this defendant no.1 has become owner of the entire properties belonging to the family. She is in possession and she has become absolute owner. The plaintiff is never in possession along with defendant no.1. Late Ram Lakhan Singh never remained at Chapra but he always remained at village. Plaintiff no.1 was living with Ram Lobhi Singh at Chapra who was doing thikedari business. Ram Lakhan Singh did not perform marriage ceremony of plaintiff no.1 nor the plaintiff resided with defendant no.1 with his wife. The plaintiff has never paid rent to the defendant no.1. nor he has taken produce nor he has been maintaining this defendant no.1. The defendant no.1 is not spoiling the properties. She along 6 with Rambenu Singh has executed a deed of wakf in favour of Ramjanki. Ramjanki is in possession through its pujari Satyanarayan Pandey. Therefore, the plaintiff is not entitled to get any share in the property. After the amendment an additional W.S. had been filed on behalf of the defendant no.1 in which the pleading for partial partition had been raised. The other pleas are the same as given in the original W.S. A separate W.S. had been filed on behalf of the defendant no.2. This is directly the same as filed on behalf of defendant no.1. In this, W.S. in para-5 it has been mentioned that Rambenu Singh and defendant no.1 has constructed a temple and they have installed an Idol of Ram janki. They have also given 1 bigha 12 kathas 16 dhurs of lands for the maintenance of the temple and the idol is in possession through its Pujari and Sitaram Pandey is the alleged Pujari. It is also said that defendant no.1 is in possession and the plaintiff is not in possession. This defendant no.2 has not contested the suit. However, he has figured as a witness. A separate W.S. had been filed on behalf of Ram Prit Rai which is in the line of the other W.S. This defendant no. 4 has alleged in the W.S. that this plaintiff has got no unity and title of the possession with the defendant in respect of suit properties. The other pleas are same. A separate W.S. had been filed on behalf of defendant no.5 7 and 6 Rudra Narayan Singh. Their W.S. supports the case of defendant no.1 and they have stated in para-3 of their W.S. that the suit is not maintainable. It is barred by ouster and adverse possession and this plaintiff no.1 is the son of Ram Lobhi Singh. During the course of argument, petition for amendment was filed on behalf of defendant no.5 and 6 to amendment their W.S. The amendment was sought in para- 24 of the W.S. where it has been alleged that Ram Lakhan Singh has kept a lady who was Brahmin and this plaintiff no.1 is the born of that kept Faguni Kuer. According to these defendants this is a clerical mistake in other paras, they have already admitted that this plaintiff no.1 is born of Ram Lobhi Singh. A rejoinder petition was filed against this amendment and it is said that amendment has been sought to do away with the effect of admission. The para 24 of the W.S. would show that this plaintiff no.1 is the son of Ram Lakhan Singh. I have gone through the entire W.S. and it appears that this word Ram Lakhan Singh has been inadvertently written by the scriber. This is not the case of defendants or the plaintiff that Ganga pd. Singh is the illegitimate child of Ram Lakhan Singh, and, therefore, this amendment is sought because the mistake has occurred. It does not bring any change in the nature of the suit not it brings any changes between the controversies of the parties. Therefore, this amendment petition is allowed. 8 Upon hearing the parties and on consideration of the facts and circumstances of the case, the learned 2nd Additional Sub-Judge, Chapra dismissed the suit without cost on 31.7.1984. Learned Counsel for the appellants pressed the appeal only on the ground that the exhibits 6, 7, 8 and 9 were 30 years old and were admitted documents of the defendants. In para 21 of the judgment, the trial court has recorded a finding that though the document was 30 years old but it was not proved that the author is dead. On the basis of this finding, the trial court has held that the documents contained in exhibits 6, 7, 8 and 9 are not admissible evidence. The trial court has escaped notice of Section 90 of the Evidence Act which empowers the Court to presume that the signature and every other part of such document, which purports to be that the handwriting of any particular person, is in that person’s handwriting, and, in the case of document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. The word “may” used in the Section gives distinction to the Court to draw a presumption. Therefore, the presumption is rebuttable and the trial court has not dealt with the fact as to whether the rebuttable presumption was proved or not by the defendants. Therefore, judgment and decree passed in appeal is set aside. The matter is remitted back to the trial court to record 9 Patna High Court, Patna, dated 22nd April, 2011. N.A.F.R/Ravi/- a finding on the issue of admission of the documents referred hereinabove taking notice of Section 90 of the Evidence Act and it shall be concluded within six months from the date of production of the certified copy of this order. Let the Lower Court Records be sent back to the trial court forthwith. With the aforesaid observation, the appeal is disposed off. (Prakash Chandra Verma, J.)