JUDGMENT
A.N. Dikshita, J.
1. This second appeal has been preferred against the judgment and decree dated 18-7-85 passed by IV Addl. Civil Judge, Varanasi in Civil Appeal No. 156 of 1975 by which the judgment and decree dated 9-1-75 passed by III Addl. Munsif, Varanasi in Original Suit No. 17 of 1971 decreeing the suit of the plaintiff with costs for ejectment and possession was set aside.
2. Plaintiff-appellant Ali Nasan later on substituted by his heir Nurul Haq filed a suit (No. 17 of 1971) for possession and ejectment of the defendant-respondents on the allegations that premises bearing Municipal No. J-28/55, Agaganj, Jaitpur, Varanasi was the sole property of Abdul Gafoor, Abdul Shakoor, Smt. Fatima Bibi, Shami Ullah and Smt. Nabbubat Bibi. The defendants who were near relations of the plaintiff were permitted to live in the south eastern portion of the said premises as licensees. All the above owners executed a gift-deed in favour of Smt. Saira Bibi daughter of Abdul Gafoor. The defendants thus became licensee of Smt. Saira Bibi. On 12-5-1970 Smt. Saira Bibi sold the above premises inclusive of the portion in possession of the defendants to the plaintiff. A sale deed was executed. The licence in favour of the defendants was renewed. The defendants had agreed to vacate the portion in their possession as and when required by the plaintiff. However when the plaintiff called upon the defendant to vacate the suit portion, the defendants did not do so and ultimately a notice dated 6-11-70 was sent by the plaintiff. This notice was served on the defendants on 7-11-1970. On the failure of the compliance of the requirements of the notice calling upon the defendants to vacate the suit portion, the plaintiff filed a suit claiming possession and ejectment of the defendants from the suit portion.
3. Initially defendants 1 and 2 (Mati Ullah and Shami Ullah sons of Fateh Mohammad) filed a joint written-statement denying the allegations as set out in the plaint. At the foot of the writ ten-statement a pedigree was given on which reliance was placed. The plea of t he plaintiff that they are licensees was denied
and the defendants came forward with an allegation that they are in possession since the time of their ancestors in their own right as owners. It was further alleged that Kalloo Mian was their common ancestor and Abdul Gafoor had only one anna share in the suit premises. The genuineness and validity of the gift deed executed in favour of Smt. Saira Bibi was denied. It was further alleged that Smt. Saira Bibi had no right to transfer the suit premises in favour of the plaintiff and in any case the sale deed is void and ineffective.
4. During the pendency of the suit Shami Ullah died and was substituted by his heirs Smt. Hazra Bibi, Qamruddin, Badruddin and Shamsunissa. The above heirs who were brought on record as legal representatives of the deceased defendant 2 were arrayed as defendants 2/1 to 2/4. They filed a joint written statement raising similar pleas. But no pedigree was set forth in their written statement except that Kalloo was termed as their common ancestor. On 4-11-1971 the learned Munsif on the pleadings of the parties framed the following issues :
1. Whether the plaintiff is the owner of the house in suit and is entitled to sue ?
2. Whether the defendants are in possession of the house in suit as licensees ?
3. Whether Sayara Bibi was the donee in possession of the whole house in suit and as such executed the sale deed in favour of the plaintiff and passed valid title in him ?
4. Whether the plaintiffs suit is barred by time ?
5. Whether the details of the house in dispute as given in the plaint is incorrect ?
6. Whether the plaintiff is entitled to any mesne profits ? If so, to what amount ?
7. To what relief, if any, is the plaintiff entitled ?
5. The documents relied upon by the parties were also filed in the suit. The plaintiff filed the document per list 13/C. 4 documents being registered documents and being more than 40 years old and the remaining documents being public documents were marked as Exts. 1 to 8.
6. The defendants filed the documents per list 14/C. Except paper Nos. 10 and 14 and were public documents and were accordingly marked as Ex.A-1 to Ex.A-13. The plaintiff examined Shafi Ullah s/o Shami Ullah, Hasmat Ullah and himself in support of the plaint case. On behalf of the defendants Mati Ullah appeared as the solitary witness on behalf of the defendants. The trial court on the basis of the evidence oral as well as documentary decreed the suit for possession and ejectment of the defendants.
7. It was found by the trial court that the house was duly gifted in favour of Smt. Saira Bibi who was competent to transfer the same in favour of the plaintiff. The possession of the defendants over the suit portion was found to be that of licensee. The trial court discarded the evidence of D.W. 1 Mati Ullah as not reliable and being uncorroborated. However, it was found by the trial court that this witness D.W. 1 Mati Ullah has admitted that Smt. Munni had sold her share to Fateh Mohammad who has expressed ignorance about the entire share being sold or not and has thus discredited his testimony. Another significant aspect which weighed with the trial Court was the oral testimony of P.W. 3 Shami Ullah who had deposed that defendants 1 and 2 were ejected from the house in suit at the time of Dakhal by Abdul Gafoor who obtained possession through Court. Witnessing the Dakhalnama much reliance was placed on it. The trial court also placed reliance on the sale deeds filed on behalf of the plaintiff as they were not denied by the defendants. This document (sale deed) was found to be genuine and authentic. The trial court held that the plaintiff is the owner of the suit premises. It was further held that the defendants were the licensees of the plaintiff. In view of his findings the trial court found that the plaintiff has a right to claim possession and the ejectment of the defendants from the suit premises. The suit was accordingly decreed with costs besides damages.
8. Aggrieved by the judgment and decree of the trial court decreeing the suit for possession and ejectment of the defendants an appeal was preferred by them.
9. Scanning the evidence produced on behalf of the parties the lower appellate court
negatived the case of the plaintiff that Kalloo was the sole owner of the suit premises and held that Turab was the owner of the suit premises which was inherited by his heirs after his death. The lower appellate court also held after recording a finding that Turab was the owner of the house in suit, that Ex. 1 (sale deed dated 21-2-1913) executed by Kalloo in favour of Manonullah which also recited about an earlier sale deed dated 9-12-1906 executed by Girdhari Lal in favour of Kalloo is of no avail and rejected it on the ground that it should have been proved according to law and its due execution and attestation was liable to be proved being a document of title and no presumption could be raised regarding its due execution. For similar reasons the sale deed dated 24-10-1921 executed by Fateh Mohammad s/o Kalloo which was marked Ex. 2 was also rejected by the lower appellate Court.
10. As regards Ex. 3 (sale deed executed by Fateh Mohammad in favour of Kalloo son of Abdul Gafoor) the lower appellate court held that this document has also not been proved according to law and its execution and attestation has not been proved. It was incumbent as has been held by the lower appellate court that this deed being the basis of the title should have been proved by the plaintiff and there shall be no presumption of its due execution or genuineness by virtue of Sections 90 and 90A of the Indian Evidence Act. It was observed by the lower appellate court that this deed Ex. 3 seems to have not been acted upon as Mali Ullah, Shami Ullah and Saira Bibi continued to live in the house after the execution of the sale deed. The lower appellate court found that the plaintiff is not the owner.
11. The appeal preferred by the defendants was allowed and the judgment and decree dated 9-1-75 decreeing the suit of the plaintiff for possession and ejectment of the defendants from the suit portion was set aside, thus giving rise to this second appeal by the plaintiff.
12. Learned counsel for the parties have been heard. Learned counsel for the appellant Sri Siddheshwari Prasad has strenuously urged that the findings recorded by the lower appellate court are manifestly illegal and
deserve to be set aside. It has been urged that it is settled law that the evidence at variance with the pleadings is inadmissible and cannot be looked into. The finding of the lower appellate court that Turab was the owner of the house in suit is wholly illegal in view of the fact that the respondents had never pleaded as such. Even if some witnesses might have stated that Turab was the owner of the house would not be of any avail as this part of the oral testimony would be inadmissible being at variance with the pleadings. Further it has been submitted that as the defendants had pleaded specific case of ownership having derived title from ancestors it was incumbent upon them to have adduced necessary evidence to support their plea of title. The appellants had filed necessary documents witnessing ownership and in any case the lower appellate court lost sight of the fact that the documents relied upon by the appellant to establish their title have been illegally discarded and not relied upon by the lower appellate court which has without any cogent reasons discredited such documents and has rejected the same. It has further been submitted that the finding of the lower appellate court that these documents Ex. 1, Ex. 2 and Ex. 3 have not been duly proved and as such has not placed reliance is manifestly illegal. The finding of the lower appellate court that the documents have not been duly executed has been assailed. In any case if the documents witnessing title were rejected then it was incumbent upon the lower appellate court to have afforded* an opportunity to the appellants to prove the same according to law instead of raising a presumption against the appellants. The finding of the lower appellate court that the appellant is not the owner has been recorded thus committing an illegality and ignoring a cardinal fact that the suit was based on the licence and was not for declaration to determine the ownership. The appellant has thus contended that the judgment and decree of the lower appellate court deserves to be set aside.
13. Learned counsel for the respondent Sri Aditya Narain has supported the findings of the lower appellate court and has submitted that the lower appellate court rightly did not place reliance on Ex. 1, Ex. 2 and Ex. 3 as
they were found not to have been duly proved It has been further contended that the lower appellate court rightly ignored Ex. 8 Dakhalnama as it was not acted upon. It has been submitted that whether a document has been executed or not and whether the Dakhalnama could be relied upon are pure finding of fact and cannot be interfered in second appeal.
14. Admittedly the plaintiff had filed a suit for ejectment and possession besides mesne profits, on the solitary ground that the respondents were licensees and on its being revoked the respondents were liable to ejectment. The appellant had ,clearly come forward with a case that they were the owners of the house in question a part whereof was in possession of the respondents. In order to supplement this contention the plaint case was that Kalloo was the common ancestor and they were in occupation of the premises in their own right and also by adverse possession. The respondents however, had never pleaded nor shown as to how the title was derived by them so much so that the respondents never took a plea that the ‘property in suit belonged to Turab who had a son Kalloo and a daughter Mst. Manni. The respondents have not pleaded that Turab was the owner of the house in suit and had inherited it being his heirs after his death. Further the case of the appellant that Kalloo was the owner had not been denied as their case was confined to Kalloo as owner. No doubt some witnesses might have spelt that Turab was the owner and the property after his death devolved on his heirs Kalloo and Mst. Manni but that by itself would not give weight to the defence plea that Turab was owner in view of the fact that no reliance can be placed on this part of the evidence as it was not pleaded by the defendants. In the case of Siddik Mahomed Shah v. Mt. Saran, AIR 1930 PC 57 (1) it was held that where a claim was never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward This view was approved in the case of Bhagat Singh v. Jaswant Singh, AIR 1966 SC 1861. In the case of Amrita Devi v. Sripat Raj, AIR 1962 All 111 it was held that a party cannot be allowed to adduce evidence contrary to his pleadings. In the case of
Hajarkhan Kalubava v. Kesarkhan Kayamkhan, AIR 1968 Gujarat 229 it was held that where no such custom is pleaded nor proved the court cannot make out a completely new case holding the applicability of such custom. The Supreme Court in the case of Mrs. Om Prabha Jain v. Abnash Chand, AIR 1968 SC 1083 held that the ordinary rule of law is that the evidence is to be given only on a plea properly raised and not in contradiction of the pleas. The learned lower appellate court was, therefore, completely wrong in holding that Turab was the owner of the property. The appellant had clearly set out a plaint case and had proved by necessary evidence oral as well as documentary that Kalloo was the sole owner of the property in question. In support of this contention that Kalloo was the sole owner, appellants had filed original sale deed dated 21-2-13 Ex. 1 which was executed by Kalloo in favour of Manutla. In this document 5 persons have been mentioned. Abdul Gafoor and Mohd. Shakoor were the sons of Manulla whereas Mst. Fatima Bibi is the daughter of Manulla. The two remaining persons Samiullah and Mst. Naubat Bibi are the grandsons and grand-daughter of Manulla. These five persons had executed a gift-deed dated 23-7-58 in favour of Mst. Sayara Bibi daughter of Abdul Gafoor. It would thus be clear that from Kalloo the property passed on to Manulla and his branch and not to Fateh Mohammad son of Kalloo. Moreover once defendants set forth specific plea of ownership it was incumbent upon them to have established their title. This has not been done. The learned lower appellate court was thus equally wrong in recording the finding that Turab was the owner.
15. Exts Nos. 1, 2 and 3 are the documents witnessing the ownership. Ex. 1 is the sale deed dated 24-2-1913 which was executed by Kalloo in favour of his son Manulla Another sale deed dated 24-10-1921 which is Ex. 2 was executed by Mst. Manni daughter of Turab in respect of her 5 Anna 4 paisa share in favour of Fateh Mohammad father of defendant. Whatever interest Mst. Manni had she had transferred it to Fateh Mohammad Another sale deed dated 28-10-1921 marked Ex. 3 was executed by Fateh Mohammad in favour of Abdul Gafoor. Witnessing this
document it is abundantly clear that all the right, title and interest of Fateh Moharmnad extinguished and passed over to Abdul Gafoor who along with four others executed the gift-deed Ex. 9 in favour of Mst. Sayara Bibi, the vendor of the plaintiff. The appellants in order to show their ownership filed a partition deed dated 18-10-1948 marked Ex. 4 showing that House No. 28 of 1954 and House No. 28 of 1955 were partitioned amongst the co-sharers but this deed nowhere witnesses Fateh Mohammad as a co-sharer. This partition deed is only amongst the branches of Manulla. Moreover the gift-deed dated 23-7-58 Ex. 9 was executed by Abdul Gafoor and others in favour of Mst. Sayara Bibi, The recital of this deed manifestly shows that the defendants 1 and 2 were living as licensees. Ex. 5 is a receipt of Nagar Mahapalika issued in favour of Mst. Sayara Bibi who had paid taxes. The mutation card prepared in favour of Mst. Sayara Bibi is Annexure 10 and these two documents were filed and relied upon by the plaintiff-appellant. It was Mst. Sayara Bibi who derived the title on the basis of the above mentioned documents and had sold the property in favour of the appellant The registered sale deed dated. 12-5-70 is Ex. 11.
16. However, the lower appellate court proceeding on the assumption that Turab was the owner of the house considered Ex. 1, Ex. 2 and Ex. 3, illegally discarded their authenticity and execution. Once a document has been exhibited without any objection it will not be open to the adversary to object about it at a later stage. The respondents did not raise any objection and the trial court was thus right in exhibiting the same. The lower appellate court thus wrongly rejected the documents on the ground that they have not been proved according to law in the absence of proof of execution and attestation. The lower appellate court also erroneously held that presumption of its due execution or genuineness by virtue of Sections 90 and 90A of the Indian Evidence Act cannot be riased. In the case of Gopal Das v. Sri Thakurji, AIR 1943 PC 83 it was held that there the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as
an exhibit and admitted to the, record. A party cannot lie until the case comes before a court of appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisting on at the trial. In the case of P.C. Purushothama Reddiar v. S. Perumal, AIR 1972 SC 608 it was held that it is not open to a party to object to the admissibility of the document which are marked as Exhibits without any objection from such party.
Moreover in view of the document being exhibited it must be read in evidence. The lower appellate court has wrongly held that the documents have not been executed and more so when no such plea was raised on behalf of the respondents either in their written statement, oral evidence or the grounds of appeal filed by them. The contention of the respondent that this finding of the lower appellate court that Ex. 1, 2 and 3 were executed is a finding of fact is untenable. The rejection of these documents by the lower appellate court cannot be sustained. A presumption of proof as regards Ex. 1 and Ex. 2 has been erroneously discarded under S, 90 of the Evidence Act. Even if a presumption in respect of a document is not available under Section 90, it would bo open to the Courts to raise a presumption under Sections 4 and 14 of the Evidence Act. Such a misdirection is reflective in the legal approach of the lower appellate court. It would have been incumbent on the Courts, placed in such a situation, to afford an opportunity to the party to establish his case on the basis of the document. In the case of Ram Jas v. Surendra Nath, AIR 1980 All 385, a Full Bench of this Court held as under : —
“The law of evidence does not affect substantive rights of parties, but only lays down the law for facilitating the course of justice. The presumptions under the Evidence Act are only the inferences which a logical and reasonable mind normally draws. Whenever the law permits the raising of a presumption the Court can by reason of Section 4 of the Evidence Act raise the presumption for purposes of proof of a fact. If the presumption is available in one section it can raise it under that section. If it is not available in one section and is available in another
section, then the Court can raise presumption under that section. It all depends upon the circumstances available in the case as applicable to a particular document.”
18. Ex. 1 is the document of the year 1906 while Ex. 2 is the document of the year 1913. Both are thus 80 years and 73 years old documents respectively. Section 90 of the Evidence Act is a solution to the difficulty in proving a document which is more than 20 years old by producing witnesses. It is not possible to bring necessary evidence in respect of a document which was 80 years and 73 years old Another aspect which has not to be lost sight of is that the raising of presumption in regard to the due execution and proof of document under Section 90 is discretionary. The finding recorded by the lower appellate court is thus rendered illegal in view of the Full Bench decision of this Court in the case of Babu Ram Ashok Kumar v. Antarim Zila Parishad, AIR 1964 All 534.
19. The lower appellate court has wrongly placed much reliance on Ex. 8 Dakhalnama thereby and has wrongly misread this evidence thus committing an error of law warranting interference. In the case of Govindaraja Gounder v. Narayanaswami, 1969 SCD 624, Mehanga Singh v. Sunder Chand, 1969 SCD 781 and Radha Nath Sea! v. Haripada Jana, AIR 1971 SC 1049 it has been held that in a case where findings of fact have been recorded by the court below by the misreading of evidence the High Court would be justified in interfering with such findings of fact. A recital of Ex. 8 Dakhalnama clearly established that the defendants were dispossessed and it fortifies the case of the appellant that they were granted license of only 2 rooms by the appellants.
20. Section 60 of the Registration Act provides for raising a presumption of the execution and correctness of the contents of a document if it has been duly registered Admittedly all these documents which have been erroneously discarded ,by the learned lower appellate court though they are registered and the vendor and the witnesses have recorded their signatures or thumb impressions. No adverse view can be taken in such circumstances.
21. Relying on Ex. 1, Ex. 2 and Ex. 3 and raising a presumption about their genuineness under Section 90 the trial court decreed the suit but however if the appellate court was going to upset that presumption either on the ground of age or on the ground of proper custody then it was incumbent to have afforded an opportunity to the appellants who had produced these documents. Apparently no such opportunity was given. It has been held in the case of Daudas v. Punamchand, AIR 1954 Raj 47 that the effect of presumption under Section 90 is that a formal proof of a document which is more than 20 years old such document is admissible in evidence. In the case of Babu Nandan v. Board of Revenue AIR 1972 All 406 a similar view was taken.
22. As discussed above it is the discretion of the trial court either to raise or not to raise the presumption under Section 80. The trial Court raised a presumption in favour of the appellant but the lower appellate court overruled such exercise of discretion. It was imperative for the lower appellate court to have sent the case back for retrial as has been held in the case of Rajendra Prasad Bose v. Gopal Prasad Sen, AIR 1929 Patna 51. In the case of Mt. Gomti v. Meghraj Singh, AIR 1933 All 443 it was held as under : —
“The raising or not of a presumption under Section 90 as to the genuineness of a document is a matter for judicial discretion; and the Court must apply its mind in each case to the question whether it is a proper case to raise such presumption.”
23. In view of the above discussions this appeal must succeed and the judgment and decree dated 18-7-75 passed by IV Addl. Civil Judge, Varanasi deserves to be set aside.
24. In the result the appeal is allowed and the case is remanded back to the Court of IV Addl. District Judge, Varanasi for disposal according to law and in the light of the observations made above. There will be no order as to costs.
