ORDER
K.K. Lahoti, J.
1. This is defendant’s appeal against the judgment of reversal by the Appellate Court. This appeal was admitted on 18-3-1991 on following substantial questions of law:–
“Whether the First Appellate Court erred in reversing the judgment and decree of the Trial Court and in not accepting the case of defendants claiming title to the suit land on the basis of sale deed Ex. D-l and Ex. D-2 ?”
2. Facts in short of the case are, that the plaintiffs/respondents filed a suit for permanent injunction and in the alternative for possession on the ground that the suit land survey No. 258/1 area 0.91 of Village Bharola, Tehsil Bandhavgarh belongs to the plaintiffs who are the bhoomiswamis and in possession of the land. In July, 1976 defendants encroached over the western part of the land and damaged crops. Plaintiffs removed the encroachment of defendants from the land. But on 15-11-1977, the defendants forcibly reaped the crop from a part of the land which is shown by words (A), (B), (C), (D) in the plaint. Thereafter again on 27-11-77 defendants tried to dispossess plaintiffs but failed in their attempt. Thereafter defendants are regularly threatening the plaintiff for encroachment hence the suit was filed for the aforesaid reliefs.
3. Defendants contested the suit on the ground that out of area 0.91 acres of the land, 0.25 decimal land was purchased by father of defendant Balla Gadariya for a consideration of Rs. 100/- from Joharia (father of plaintiff), and also handed over possession of the land. Since then the defendants are in possession of 0.25 Decimal land. After the death of Joharia his wife Taiya again borrowed Rs. 90/- from defendants and executed a deed in favour of the defendants. The possession of defendants is in the knowledge of plaintiffs. The defendants have acquired right by way of adverse possession but the plaintiffs with the collusion of Patwari, has got entered their possession over the land. The plaintiffs have also damaged the crop of wheat and gram of defendants which was sown by them. With the aforesaid pleadings, defendants contested the suit.
4. The Trial Court framed the issues and after recording the evidence recorded a finding that except 0.25 decimal land, rest land is in possession of the plaintiffs and they are Bhoomiswamis. So far as 0.25 decimal land is concerned, the defendants are in possession of the land since 25-5-1954. But the purchase of the land by the father of the defendant No. 1 is not found proved. The Trial Court also found that in the year 1977, defendants did not tried to dispossess the plaintiffs. On these findings the suit was dismissed. The plaintiffs challenged Trial Court’s judgment and decree in appeal. The Appellate Court found that in the case the Trial Court erred in invoking Section 90 of the Evidence Act because in the case defendants examined witnesses and when the witnesses are examined to prove a document, it is not necessary to raise a presumption under Section 90 of the Evidence Act. The Appellate Court found that there is no evidence in the case to prove the fact that since 1954, the defendants are in possession of the land. No revenue record in this regard has been filed. The finding of the Trial Court is based on document (Ex. D-l) which is not proved. In the year 1977 a dispute arose between the parties and the defendants had reaped the crop of plaintiffs, this fact finds support from the statement of Taiya (P.W. 2), Daddi (P.W. 3) and Sarman (P.W. 4). Defendant No. 1 Sugri also supported this contention of the plaintiff to some extent. On these grounds, the Appellate Court found that the cause of action arose on 15-11-1977. The Appellate Court also found that the documents (D-l and D-2) are not proved. Document (D-2) was not found proved even by the Trial Court. The document (Ex. D-l) is unregistered document and the Trial Court believed it invoking Section 90 of the Evidence Act, which is not applicable in the facts of the case. On the aforesaid findings Appellate Court allowed the appeal and decreed the suit.
5. Learned Counsel appearing for the appellant contended that in this case Section 90 of the Evidence Act is applicable, and the Appellate Court erred in not drawing presumption in favour of the document (D-l), which is 30 years old. Reliance is placed to the Supreme Court judgment in Sri Lakhi Baruah and Ors. v. Sri Padma Kanta Kalita and Ors. (AIR 1996 SC 1253). It is contended that the document may be relied on and the signatures and execution of document may be presumed being a document 30 years old and has come from proper custody. Merely on the basis of minor contradiction, the document can not be disbelieved.
6. Learned Counsel appearing for the respondents supported the judgment of the Appellate Court and contended that in the document (Ex. D-l), there is no description of any land. The parties have examined witnesses to prove the document then presumption under Section 90 of the Evidence Act is not available. Reliance is placed to a Division Bench judgment of this Court in Jai Narayan Durga Prasad v. Satyanarayan (1991 MPLJ 768) and contended that this appeal has no merit and may be dismissed.
7. From the perusal of the document (Ex. D-l), a consideration of Rs. 100/- has been shown for the land in dispute: Under Section 17 of the Registration Act it requires registration. Though the Trial Court has recovered stamp duty and penalty on the document but by this itself will not give any benefit to the defendant. In the document there is no description of the property by boundaries, survey number or the location of the land. In Samvat 2011 (equivalent to year 1954) the value of Rs. 100/- was too high. The defendant though paid Rs. 100/- to Joharia but not got document registered. The witnesses of the document are examined as Sughari (D.W. 1) who has stated that document was written in front of house of Chotti Ahir but he has not gave any description of the execution of the document by Joharia. Kapoorchand (D.W. 2) is witness of document. He has stated that this document was written and signed by Semalia alias Semali and him. Joharia put thumb impression. He is also attesting witness of document (D-2). In his statement he has not stated that the document (D-l), before the execution by Joharia was read over to him and thereafter Joharia put his thumb impression. It is stated that Joharia had put his thumb impression on the document. This shows that the executant of document was illiterate person. Before execution of the document it was the duty of the Scriber to read over the document to the executants and only thereafter the thumb impression ought to have been put. But in absence of this it can not be said that the document was duly executed. Virendra Singh (D.W. 3) is a witness of the document (Ex. D-2) which has not been found proved by both the Courts below. Darbari Lal (D.W. 4) is a witness of possession on the land.
8. From the perusal of the document it is apparent that this document did not contain the details of the land, sold by the document, nor it was read over to the executants, who were illiterate, before the execution. In these circumstances, on the basis of the document (Ex. D-l), it can not be said that the document was proved in accordance with law and defendant got right and title over the land in dispute. When the land was purchased in the year 1954 then why the purchaser has not got their name mutated in the revenue records ? There is no explanation in this regard. The Khasra entry of year 1976-77 is on record as Ex. P-l which also shows that the land remained in the name of plaintiff. Bhoo Adhikar Pustika also shows the Bhoomiswamis are the plaintiffs. All the aforesaid circumstances create a serious doubt in respect of the document (Ex. D-l). This Court in Jay Narayan Durga Prasad (supra) considering scope of Section 90 of the Evidence Act held :–
“5. True, Section 90 of the Evidence Act raises a presumption in respect of documents which are 30 years’ old, about their execution and signatures and every other part of such documents, which purports to be in the handwriting of any particular person, if the documents are produced before the Court from a proper custody. But it is trite that the question as to whether the presumption under Section 90 arises or not, in the circumstances of the case, must be decided on the evidence adduced. The parties are, therefore, left with the option of leading such evidence as they like for the proof of disproof of the presumption. (See Mohammad Hussain and Ors. v. Gopibai and Ors., 1975 JLJ Note 38). Besides, the presumption is permissive; a party leading evidence to prove a document, can not rely on such presumption. (See Shriram v. Sabir Hussain, 1983 MPWN 43). As the plaintiff himself has led evidence to prove the document and signatures on it of document No. 1 and his father, he can not be heard to say that as the document is 30 years’ old and there is presumption about its execution and signatures and every other part thereof, the defendants can not be allowed to lead evidence in rebuttal.”
9. Section 90 of the Act provides a presumption in respect of a document which is 30 years old and is produced from proper custody, then the Court may presume that the signatures and every other part of the document which purports to be in the handwriting of any particular person is in that person’s handwriting and it was duly attested and contested by the person by whom it purports to be executed and attested. This is a presumption for a document which is more than 30 years old and comes from proper custody. Though in this case a document has been produced by the defendants and appears to be 30 years old but in this case when defendants themselves have produced the evidence in respect of execution and attestation of the document then there is no question for raising any presumption under Section 90 of the Evidence Act.
10. In Lakhi Baruah (supra) the Apex Court held :–
“15. Section 90 of the Evidence Act is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, which does not away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question are produced from proper custody. It is however, the discretion of the Court to accept the presumption flowing from Section 90. There is, however, no manner of Court that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.”
11. The Apex Court held that it is not mandatory to raise a presumption under Section 90 of the Evidence Act merely on the ground that the document is more than 30 years old. It is within the discretion of the Court to accept the presumption in the case.
12. In the aforesaid circumstances if the Appellate Lower Court after appreciating the evidence found that the document (Ex. D-l) is not proved and does not convey and title in favour of the defendants then there is no infirmity or perversity in the judgment. Apart from this the defendants who were claiming in possession of the land since last more than 30 years, unable to produce any revenue record showing their possession over the land. Taking cumulative effect of all the aforesaid, the Appellate Court has rightly found that the document is not proved and the defendants are not in possession of the land. On the contrary the evidence of plaintiff showing their possession has been relied upon by the Appellate Court is based on sound reasoning. I do not find any merit in this appeal warranting interference. This appeal is dismissed with no order as to costs.