1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 499 OF 2007 Murlidhar Pandu Pagare & Ors. ..Appellants V/s. Laxman Kisan Pagare & Ors. ..Respondents Mr.M.S.Karnik for the Appellants/Applicants. Mr.Prashant Patil for Respondent Nos. 1 to 3. CORAM : R.M.SAVANT, J. DATED : AUGUST 29TH, 2008. P.C. Admit on the following substantial question of law : a) Whether in view of Section 90 of the Evidence Act, it is not necessary to prove the contents of a document which is more than 30 years which in the instant case is a partition deed ? 2 2. By the consent of the parties, the Appeal is heard forthwith for final disposal. 3. By the above Appeal, the Appellants who are the original Defendants takes exception to the Judgment and decree dated 18th December, 2003 passed by the learned 4th Additional District Judge, Nashik by which the Judgment and decree passed by the Trial Court dated 25th April, 2000 came to be set aside. 4. The Appellants are the original Plaintiffs. The dispute in question is as regards the land bearing Gat No.6 admeasuring 8 Hector and 4R situated at Mouje Shivani, Taluka Dindori, District Nashik which is the ancestral property of the Plaintiffs and the Defendants. The Defendants are the cousins of the Plaintiffs as the father of the Plaintiffs and the father of the Defendants 3 were brothers and were holding 50:50 share in the said property. It was the case of the Plaintiffs that they own and possesses and are cultivating the southern half portion of the said land where as the Respondents/Defendants are in possession of the Northern half portion of it. Since the Respondents/Defendants in or about August 1996 started interfering and obstructing the Plaintiffs from cultivating their share i.e. the Southern half portion of the said suit property, the Appellants filed Regular Civil Suit NO.78 of 1997 in the Court of the Civil Judge, Junior Division, Dindori. The Appellants failed to seek injunction in the said suit though applied for. It was the case of the Defendants in the said suit that pursuant to a partition which has taken place in the year 1968 between the father of the Plaintiffs and Defendants i.e. Pandu and Kisan respectively and in terms of the recitals of the said partition deed which was executed on the said day the land Gat No.12-A and 4 12-B had fallen to the share of Pandu whereas the land Gat No.6 had fallen to the share of Kisan i.e. the father of the Defendants. It was the case of the Defendants that on account of the said partition deed dated 13th August, 1968, the Plaintiffs have no concern with the said land bearing Gat No.6 of Village Mouje Shivani. It was further the case of the Defendants that they possess the entire suit land and that their names have been entered in the Revenue Record. 5. The parties went to trial, since the case of the Defendants was solely based on the said partition deed dated 30th August, 1968, the Trial Court considered the said case of the Defendants and on the basis that on the day of filing of the said suit, the said documents was not 30 years old, the Trial Court was of the view that the said document could not be exhibited in view of the fact that the provisions of section 90 of the Evidence 5 Act would not be applicable to the said document. The Trial Court therefore accepted the case of the Plaintiffs that they are in possession of the said land Gat No.6 admeasuring 3 Hector and 7R and decreed the said suit by granting the perpetual injunctions whereby the Defendants were restrained from interfering with or obstructing the Plaintiffs possession and cultivation over the Southern half portion of the suit land Gat No.6 in any manner what so ever either by themselves or to their relatives, agents or servants or anybody acting claiming through them. 6. The Defendants aggrieved by the decree dated 25th April, 200o passed by the Trial Court filed Regular Civil Appeal No.204 of 2000. The Lower Appellate Court also tested the case of the Defendants on the basis of the said partition deed dated 30th August 1968 and reached the conclusion that the Trial Court has heard in not exhibiting 6 the said document as the said documents was 30 years old when tendered in evidence in the year 2000. The Lower Appellate Court therefore recorded a finding that the said document namely the partition deed dated 30th August, 1968 is required to be exhibited in terms of section 90 of the Evidence Act. The Lower Appellate Court on the basis of the said document therefore held that the Defendants had proved that the partition had taken place on 30th August, 1968. As regards the authenticity of the said document, the Lower Appellate Court rejected the submission made on behalf of the Plaintiffs that the said document was a suspicious document in view of the fact that there was an over writing etc., the Lower Appellate Court therefore by its Judgment and order dated 18th December, 2003 set aside the decree passed by the Trial Court and dismissed the suit of the Plaintiffs. 7 7. In the light of the substantial question of law framed herein above, I have heard the learned counsel for the parties. The learned counsel for the Appellant Shri Karnik fairly conceded that though the document could be admitted in evidence, if on the day when it was tendered in evidence, it was more than 30 years old. Shri Karnik submitted that a learned single Judge of the Madhya Pradesh High Court has held that period of 30 years is to be counted from the date of the document, as also on the date when it is tendered in evidence. Shri Karnik fairly conceded that a similar view has been taken by the Gujrat and Punjab and Hariyana High Court. However, Shri Karnik relied upon the Judgment of the Apex Court, reported in (2005)9 Supreme Court Cases 359 in case of Gangamma & Ors. V/s. Shivalingaiah, and submitted that though section 90 of the Evidence Act give rise to a presumption as regards the signature and every other part of document namely 8 the execution of it, however, section 90 of the said Act nowhere provides that the authenticity of the recitals contained in the said document is presumed to be correct. In the said Judgment, the Apex Court had set aside the Judgment of the High Court wherein the High Court has held that the proof of authenticity of the recitals is inbuilt in section 90 of the Evidence Act. The learned counsel Shri Karnik by drawing my attention to the findings recorded by the Lower Appellate Court, submitted that the Lower Appellate Court erred in setting aside the decree passed in favour of the Plaintiff by mainly accepting the said document i.e. the Partition Deed as being admissible in evidence without calling upon the Defendants to prove the contents of the same by cogent evidence. The learned counsel therefore submitted that this is a fit case wherein the decree passed by the Lower Appellate Court is required to be set aside and the matter remanded back to the Lower Appellate 9 Court for a decision afresh by calling upon the Defendants to prove the contents of the said partition deed dated 30th August, 1968. 8. Per contra, it is submitted on behalf of the Respondents i.e. the original Plaintiffs relying upon section 90 of the Evidence Act, that as regards the contents the Lower Appellate Court has also recorded a finding that the contents are proved. The learned counsel tried to buttress his submission by drawing my attention to the finding recorded by the Lower Appellate Court, but ultimately, conceded that the Lower Appellate court did not call upon the Defendants to prove the contents of the said partition deed dated 30th August, 1968. The learned counsel for the Respondents therefore left it to this Court as regards the course of action to be followed. 9. I have heard the learned counsel for 10 either of the parties and bestowed my anxious consideration to the rival contentions. As indicated above, the short question is as to whether the Defendants were obliged to prove the contents of the document though there is a presumption under section 90 of the Evidence Act as regards the signature and every other part of the said document which purports to be in the hand writing of any particular person, in that persons hand writing and in the case the documents executed or attached that it was duly executed and attested by the persons by which it purports to be executed and attested. In my view, there is considerable merit in the submission made on behalf of the Appellants by the learned counsel Shri Karnik. Notwithstanding the said presumption as held by the Apex Court in the Judgment cited Supra, the contents or the recitals of the said documents would have to be proved. 11 10. A perusal of the Judgment and order of the Lower Appellate court, ex-facie makes it clear that the Lower Appellate Court though rightly having held as regards the admissibility of the said document, thereafter proceeded on a wrong premise that the presumption contemplated under section 90 of the Evidence Act is also applicable to the contents of the said document. 11. The Lower Appellate Court therefore accepted the said content as proved without calling upon the Defendants to prove the said contents by cogent evidence. In my view, therefore the Judgment and decree passed by the Lower Appellate Court dated 18th December, 2003 would have to be set aside and is accordingly set aside. The matter would have to be remanded back to the Lower Appellate Court for a de-novo consideration by calling upon the Defendants to prove the contents of the said document dated 30th August, 1968 by 12 giving proper opportunity to them. The suit thereafter to be decided by giving proper opportunity to all the parties. On remand, the Lower Appellate Court to decide the said Appeal within a period of six months from date. In so far as the possession of the suit land is concerned, the parties to maintain status -quo as on 18th December, 2003. 12. The Appeal is accordingly allowed. [R.M.SAVANT, J.]