JUDGMENT
Shiv Kumar Sharma, J.
1. This revision arises from the order dated October 9, 1996 of the learned Additional Civil Judge (Senior Division) Jhunjhunu, whereby the application of the defendant non-petitioner under Section 90 of the Evidence Act was allowed and presumption as to alleged thirty years old document was raised.
2. The pleadings of the parties reveal following genealogy and facts.
(i) The plaintiff petitioner (for short the plaintiff) on June, 29, 1983 instituted a suit for declaration and permanent injunction in their individual capacity as well as in the representative capacity on behalf of the inhabitants of ‘Nau Meh Mahala Jhunjhunu’. The plaintiff pleaded in the plaint that ‘Nohra’ situated in the mohala ‘Nau-Mahela’ Jhunjhunu is the property of the Temple Gopinathji Maharaj as is popularly known as ‘Bagichi’ for the last more than one hundred years this ‘Nohra’ has been used and utilised by this inhabitants of the area for the purposes of ‘Satsang’ Katha Vachan reciting Bhajan and Dharmik Jagarans. A well and water tank also exist in the said Nohra. Ram Din, a predecessor of the defendants No. 2, 3, 4 & 5 used to worship of the idol of the said temple. After his death Management Committee of the Mohalla stated looking after Sevapuja of the Idol.
(ii) In order to restrain the defendant from raising the construction over the said Nohra the plaintiff Sought in the suit the relief of declaration and permanent as well as mandatory injunction. The defendants on October 10 1983 filed the written statement and pleaded that the Nohra neither belong to temple nor to idol Shri Shyam Sunder Shekhawat the then Jagirdar of Bisan Thikana issued Patta in respect of said Nohra in favour of Ram Kishan Harlal, the predecessor of the defendants on Chait Sudi 15, Samwat 1862. The Nohra is situated on the west side of the house of defendants and they have been using it since long.
(iii) The learned trial court framed issues and posted the case for recording the evidence of the plaintiff. The defendants before the start of plaintiff’s evidence, moved an application on September 23, 1996 under Section 90 of the Indian Evidence Act praying therein that a presumption be raised with regard to execution, writings seal and signatures on the Patta which is more than 30 years old document. The plaintiff vigorously contested the application and contended that the said Patta was a forged document in support of this contention the plaintiff made following references.
(a) Ramdin the father of defendants No. 1 to 5 executed a sale deed in respect of adjacent land before the Sub Registrar Jhunjhunu on June 12, 1961. In the said sale deed disputed Nohra was referred as belonging to temple.
(b) In another sale deeds of adjacent land, respectively executed on October 10,1957 and September 2, 1958 the disputed Nohra was deferred as belonging to Mandir Shri Gopi Nathji Maharaj.
(c) In civil suit No. 6-/73 decided on June 4, 1993 by the Civil Judge (Senior Division) Jhunjhunu, a map (Ex. 2) was filed by Shyam Sunder (defendant) in which the disputed Nohra was shown as the property belonging to the temple Gopi Nathji Maharaj.
(d) Sita Ram son of late Ramdin on April 26, 1983 submitted an application before the Municipal Board Jhunjhunu in a prescribed form wherein in the column of title he did not mention that the Nohra was his property.
(iv) The learned trial court vide its order dated October 9,1996 allowed the application and raised presumption, with regard to correctness of writing and signatures of Har Govind, seal of Thikana and word ‘shree’ of the Patta Miti Chaitra Sudi 15, Samwat 1862.
3. Mr. S.C. Gupta, learned Counsel appearing for the plaintiffs urged that no presumption can be raised with regard to seal and signatures of an agent. Har Govind was an agent of Shyam Sunder therefore it cannot be presumed that his alleged signatures are genuine. Learned Counsel further contended that when specific plea was introduced by the plaintiffs that the document in question was a forged documents, no presumption in respect of the said document can be raised. It was next contended by the learned Counsel that list submitted by Jagirdar Shyam Sunder at the time of resumption of Jagir would have been the best evidence to prove this fact that Nohra in dispute was ever given on Patta by the Jagirdar.
4. On the other hand Mr. O.P. Garg, learned Counsel appearing for the defendant supported the impugned order and submitted that there is no error of jurisdiction in the impugned order. Request for raising presumption ought to have been made initially and it as accordingly made. Raising presumption in respect of a document which is more than thirty years old is within the discretion of the trial court and this discretion cannot be interfered unless it has been exercised arbitrarily or capriciously. Placing reliance on Gulzarilal v. Bhagwati Prasad RLW 1968 page 501 Mr. Garg learned Counsel canvassed that even presumption In respect of writing and signatures of agent can be raised under Section 90 of the Indian Evidence Act.
5. I have bestowed my thoughtful consideration to the rival contentions and carefully perused the impugned order as well as the authorities cited at Bar.
6. Before adverting to the rival contentions it is necessary and useful to refer Section 90 of the Indian Evidence Act, which reads as under:
Section 90 where any document, purporting or proved to be thirty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and 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.
Explanation–Documents are said to be in proper custody if they are in the place in which and under the care of the person with whom, they would naturally be but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probation.
7. The language used in the section indicates that the presumption raised is a permissive one. Though it is not obligatory on the court to raise the presumption, it is a matter of judicial discretion whether the court will make the presumption or call upon the party to offer other proof. If the document is suspicious on the face of it, the court need not draw the presumption at all. In the case of a document more than thirty years old, the genuineness of which is disputed, it is necessary for the court to consider the evidence, external and internal of the document in order to enable it to decide whether in any particular case if should or should not presume proper signature and execution. The law on the point has been laid down by their Lordships of the Privy Council in Shafiqunnisa v. Shabn Ali Khan I.L.R. 26 Allahabad 581 (P.C.). It was propounded that where a document more than thirty years old, purporting to come from proper custody, is required by the court before which it is produced, to be proved and is left unproved and there are circumstances, both external and internal, which throw great doubts upon the genuineness of the document, the court can, in the exercise of the discretion vested in it under Section 90, decline to admit it in evidence without formal proof.
8. The principles that are deducible from the authorities cited at the bar, may be summarised thus:
(i) Request for drawing presumption under Section 90 should be made at the initial stage of the suit and not after the party adduced the evidence and failed to prove the document.
(ii) It is not obligatory on the court to raise the presumption. It is a matter of judicial discretion.
(iii) When genuineness of document is disputed, it is necessary for the court to consider the pleadings surrounding circumstances before exercising its discretion.
9. It is not necessary for me to make any observation about the document in question as it may affect the rights of the parties but after looking to the pleadings of the parties and weighing the rival contentions. I am of the considered opinion that no presumption could have been drawn in the case on hand in respect of the document in question. The plaintiff seriously disputed the genuineness of the document and pleaded the circumstances creating suspicion about it in their reply to the application of the defendants. It was therefore necessary for the trial court to make a close scrutiny of the pleadings of the parties. As document in question is said to have been issued by a Jagirdar, it was also incumbent upon the learned trial court to consider and appreciate the relevant provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. List of the properties submitted by Jagirdar Shyam Sunder to the Jagir Commissioner at the time of resumption of his Jagir would have provided some assistance to the trial court with regard to the fact that disputed Nohra was ever given on Patta to the predecessor of the defendants. The documents referred by the plaintiff in their reply and circumstances emerged in the case were not properly appreciated. I am of the view that the learned trial court did not exercise its discretion judicially in drawing the presumption under Section 90 and thus committed error of jurisdiction. If the impugned order is allowed to stand it would occasion failure of justice.
10. In the result the revision succeeds and is hereby allowed. The order dated October 9, 1996 of the learned trial court stand set aside. Costs easy.