Allowed

Mahmood Ali and Others v. Smt Rajjan and Others

Allahabad HC14 Sept 2023SAPL/788/1981

Case brief

AI extract

What is this about?

In a second appeal regarding a property dispute, the High Court examined whether a solitary 1901 survey document proved joint ownership or if the plaintiffs had exclusive title. The Court found the defendants failed to prove the document's validity, establish a family settlement, or prove their own title deeds. Consequently, the Court held the plaintiffs' evidence of exclusive acquisition was cred

What did the court decide?

The judgment and decree of the Lower Appellate Court dated 23.07.1981 were set aside, and the judgment and decree of the Trial Court dated 30.09.1980 were affirmed. The suit for possession was restore

Mahmood Ali and Others Vs Smt Rajjan and Others — Partition | Allahabad HC (2023)

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Reserved Neutral Citation No. - 2023:AHC-LKO:59008

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Court No. - 19

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Case :- SECOND APPEAL No. - 788 of 1981

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Appellant :- Mahmood Ali And Others Respondent :- Smt Rajjan And Others Counsel for Appellant :- P.N.Bhatt,B.R.Tripathi,H.S.Sahai,Rajeiu Kumar Tripathi Counsel for Respondent :- M.Naseerullah,A.A.Zaidi,A.R. Khan,F.A.Khan,K.A.Khan,Rakesh Kumar Srivastava,S.M. Nasir,S.M. Parvaiz Yousuf,Satish Kumar Sharma,Syed Mohammad Parvaiz You

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Hon'ble Jaspreet Singh,J.

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The plaintiffs have approached this Court under Section 100 C.P.C. assailing the judgment of reversal passed by the Lower Appellate Court dated 23.07.1981 in Civil Appeal No. 278 of 1980 by the District Judge, Bahraich, as a result, the suit bearing No. 78 of 1974 which was decreed by the Trial Court was dismissed by the Lower Appellate Court.

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The aforesaid second appeal was initially admitted on 01.10.1981 on the substantial questions of law as formulated in the memo of appeal at Serial No. (ii) and (vi) which read as under:-

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"(II) Whether receipts of the payment of house tax to the Town area by Faiyaz Ali alone. If so, was the appellate Court justified in holding that the tax was paid on behalf of all the co-sharers through there was no allegation to this effect?

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(IV) Whether the learned lower Appellate Court it correct that the permission does not relate to the plot in suit though the evidence of the plaintiffs has not been controverted by the defendants or their witnesses?"

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The record further indicates that this Court while hearing the appeal

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found that the above two questions did not completely encapsulate the controversy and thus by by means of order dated 13.07.2023 it framed additional three substantial questions of law which read as under:-

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“(a) Whether the lower Appellate Court was justified in reversing the findings of the trial Court basing its decision on documents bearing Paper No.Exhibit-A2 treating to be one of the oldest document which related to the joint names of Faiyaz Ali and Mosin Ali sons of Ahsan Ali without it being proved?

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(b) Whether the sole document Exhibit-A2 was sufficient enough to efface the findings of the trial Court without noticing the effect since the defendants had also claimed title over some part of the property on the basis of the sale-deed dated 18.10.1966 upon which there is no finding returned?

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(c) Whether the lower Appellate Court has committed an error in failing to consider the material evidence on record and has returned findings which are perverse.

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Thus, the Court has heard the learned counsel for the parties on the

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aforesaid questions of law:-

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In order to appreciate the controversy involved in the instant appeal, it will be necessary to take a glance at the facts which in turn would be essential to adjudicate the questions of law, hence, are being noticed hereinafter first:-

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At this stage, it will be relevant to notice that during the pendency of the proceedings, the original appellants no. 1 and 2, the respondents no. 1, 2, 3, 4, 5 and 6 all died during the pendency of the proceedings and their legal heirs have been brought on record by moving an appropriate application for substitution which was allowed. However, for the sake of convenience, the Court shall be referring to the parties as they were originally impleaded in the suit. The original plaintiffs are the appellants before this Court and the original defendants are the respondents herein.

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The original plaintiffs namely Mahmood Ali and Ahmad Ali both sons of Maqsood Ali are the resident of Miriyasi Tola, Kasba , Pargana and Tehsil Nanpara, District Bahraich instituted a suit for possession after seeking removal of constructions made by the defendant over the house in question and the adjacent garden land. The suit was filed against Mushtaq Khan son of Qasim Khan, Qasim Ali son of Mohsin Ali, Khaleen, Mohd. Hai, Mst. Rajjan and Mst. Nanhei.

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It was pleaded in the plaint that the property in question was acquired by Sri Faiyaz Ali who was the grand-father of the plaintiffs. He was survived by his two sons namely Hidayat Ali @ Ghissu and Maqsood Ali (father of the plaintiffs). It was further stated that Sri Hidayat Ali died leaving behind his widow Smt. Niyazan who also died issue less and thus all rights in the property vested with the plaintiffs.

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It was further stated that the house in question was acquired by Sri Faiyaz Ali whereas the garden adjacent to the house in question was acquired from the riyasat of Nanpara. It was also pleaded that the area which was situate on the western side of the house, it was acquired by Faiyaz Ali from riyasat of Nanpara as well as acquired some part thereof by gift executed by Sri Asghar Hussain Mirza and through litigation. Some part of the disputed property was acquired by Faiyaz Ali from the riyasat of Nanpara and after obtaining requisite permissions from the notified area of Nanpara, the uneven land with pits, was levelled by Faiyaz Ali and since then he had been in its possession as its owner and since then from the time of Faiyaz Ali it has remained with the plaintiffs who are its owner.

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It is further stated that about 7 to 8 years prior to the institution of the suit, the defendant nos. 1 and 2 who were related to the plaintiffs and their house had fallen in the rains and having no place to go they had sought refuge with the predecessors of plaintiffs who had permitted them to reside till such time they could re-construct their house. The defendant nos. 4 who is the son-in-law of defendant no. 2 also started living therein whereas the defendant no. 6 is the wife of defendant no. 4 and the defendant no. 5 is the widow of defendant no. 1.

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It is further stated that the defendants behind the back of the plaintiffs had obtained some permissions from the notified area of Nanpara and started raising constructions which was objected to by the plaintiffs and their permission was initially rejected but once again they started raising constructions and the plaintiff being aggrieved against the illegal acts had issued a notice to the defendants on 15^th December, 1971 and 23^rd December, 1971 but the defendants did not stop, consequently, the suit for possession along with the relief of removal of the alleged constructions was filed in the Court of Munsif, Bahraich on 05.03.1974.

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The suit was contested by the defendants and the defendants no. 1 to 4 filed a joint written statement whereas the defendants no. 5 and 6 filed their separate written statements jointly.

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The basic defence of the defendants was three folds. It was stated that

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the property in question actually belonged to Ahsan Ali who was the common ancestor. Upon the death of Ahsan Ali, he was survived by his two sons Mohsin Ali and Faiyaz Ali. Upon the death of Mohsin Ali, he was survived by his son Qasim Ali, the defendant no. 2 whereas the plaintiffs are the grandsons of Faiyaz Ali. It was thus stated that since there was no partition, accordingly, the defendants also had a right in the property in question having succeeded from their predecessors.

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The second limb of contest was that the defendant no. 4 was the daughter of Hidayat @ Ghissu. It was pleaded that Hidayat Ali had married a lady by the name of Kallo and Mst. Rajjan was the daughter of Hidayat Ali and in this manner she also had 1/4th share, accordingly, it is incorrect to state that the plaintiffs were the exclusive owners. For the aforesaid

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reasons, the plaintiffs could not seek a decree of possession against the defendants as they were also the joint owners and since there was no partition and without a partition, the suit could not be decreed.

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The third limb of contest was that some part of the property in question had been acquired by means of a sale deed dated 18.10.1966 executed by Shahanshah Hussain who was its erstwhile owner and some part thereof has been received by means of a sale deed executed by Smt. Niyazan who transferred her share to Smt. Nanhei, the defendant no. 6. It is for the aforesaid reason that the defendant nos. 5 and 6 namely Mst. Rajjan and Mst. Nanhei had filed a separate written statement jointly.

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Upon the exchange of the pleadings, the Trial Court framed 13 issues, however, the relevant issues in so far as the present controversy is concerned were:-

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(i) Whether the plaintiffs are the owners of the house and Ahata in suit?

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(ii) Whether the property in suit along with the house to the west of A, B, C, D, E and F (Rasta) was acquired by Faiyaz Ali as alleged in para 3 of the plaint, if so, its effect?

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(iii) Whether Ahsan Ali was the owner in possession of the property in suit along with the house to the west of A, B, C, D, E and F, if so, its effect?

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(iv) Whether the defendant no. 1 acquired the ownership of the Ahata as alleged in paragraph 14 of the written statement?

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(vi) Whether there was a mutual partition as alleged in paragraph 15 of the written statement?

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(vii) Whether the defendants no. 5 and 6 are the owners in possession of the

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portion of the disputed property in suit respectively as alleged in paragraph nos. 15 and16 of the written statement?

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The parties led oral and documentary evidence. The plaintiffs examined 6 witnesses whereas the defendants examined 5 witnesses. Considering the same, the Trial Court by means of judgment and decree dated 30.09.1980 decreed the suit of the plaintiff awarding a decree of possession with a direction to the defendants to remove the offending constructions and hand over the possession to the plaintiff within a month failing which the plaintiffs would have the right of getting the decree executed through the Court and the Commissioner’s map bearing No. C-18 was made part of the decree.

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The defendants preferred a Regular Civil Appeal No. 278 of 1980 before the District Judge, Bahraich and the Lower Appellate Court by means of judgment and decree dated 23.07.1981 allowed the defendant’s appeal, consequently, the suit of the plaintiff was dismissed.

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It is in the aforesaid backdrop that the plaintiffs have knocked the doors of the Court in Second Appeal under Section 100 C.P.C. and as already noted above, the appeal has been heard on the five substantial questions of law which have been enumerated in the preceding paragraphs.

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The record further indicates that by means of order dated 15.05.2019 and 15.07.2019, this Court had appointed a Commissioner for carrying out the necessary measurement of the properties and the report has also been brought on record. The record would further indicate that by means of order dated 01.10.1981, this Court had passed an interim order restraining the

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respondents from raising the constructions over the property in dispute or transferring the same to anyone. The appellants were directed to deposit the entire decretal amount in the Trial Court within one month.

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It is in the aforesaid backdrop that Sri Rajeiu Tripathi, the learned counsel for the appellant while assailing the judgment of reversal has stated that primarily the property in dispute was explained to have been acquired by Faiyaz Ali, the grand-father of the plaintiffs through the permission from riyasat Nanpara. Some part was gifted by Sri Mirza Asghar Hussain. It is further submitted that the plaintiffs have filed a number of documents indicating that the property has been acquired by Sri Faiyaz Ali alone. All the taxes were paid by Sri Faiyaz Ali and thereafter by his sons. The documents indicating the grant of permission by the notified area of Nanpara in favour of Faiyaz Ali were also brought on record and these documents relate to the year 1922 onwards.

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It is further stated that the gift deed executed by Mirza Asghar Hussain was also brought on record as paper no. C-62. The receipts which were issued from riyasat Nanpara were also filed on record. The said documents were proved by not only examining the plaintiff but also Sri Syed Ali was also examined as P.W. 2 who was an employee of the Nanpara Estate. The P.W. 4 Sri Shamim Ahmad and P.W. 5 Hayat Ali were also examined who clearly deposed that they were never appointed as any Panch (elders of the Village Committee) nor they were instrumental in persuading the parties to enter into any compromise or a settlement and further they denied their signatures on paper bearing No. A-27 which was the compromise which was relied upon by the defendants.

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The plaintiffs also examined Sri Abdul Qadir as P.W. 3 and Sri Konain as P.W. 6 to establish the relationship as well as the fact that the property was acquired by Sri Faiyaz Ali. The attention was also drawn to the certified copies of the voters list to state that the defendants were residing in Mohalla Quila and not in Miriyasi Tola where the property in question is situate.

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It is further urged that the approach of the Lower Appellate Court was not correct, inasmuch as, the initial burden was on the plaintiff which was discharged by referring to the documents evidencing the deposition of the property by Sri Faiyaz Ali including from the gift deed executed by Sri Mirza Asghar Hussain as well as from the riyasat Nanpara. Once the title of the plaintiffs was established, it was for the defendants to have claimed and established their defence, however, they miserably failed to do so.

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It is submitted that the fallacy of the defence lay in the fact that they were unable to prove that they have procured some part of the property by means of the sale deed dated 18.10.1966 from Sri Shahanshah Hussain. It was incumbent upon the defendants to have established the fact that Shahanshah Hussain was at some point of time the owner of the property and had the right to sell the same, needless to say, this was never established.

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The other limb of defence was on the basis of the alleged compromise said to have been arrived at through Panch (elders of the village committee), however, this was belied by the fact that two persons who were said to comprise of the elders committee have denied their signatures on the alleged compromise bearing A-27 and further stated that

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they never participated nor were instrumental in getting a compromise effected.

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It is further urged that even the relationship of Mst. Rajjan as the daughter of Hidayat @ Ghissu was not established and lastly, the alleged transfer of share from Mst. Niyazan in favour of Mst. Nanhei was also not proved and thus for all the aforesaid reasons the case of the plaintiffs stood proved which was found by the Trial Court yet without adequate reasons, the same had been reversed by the Lower Appellate Court on the basis of inadequate evidence and by drawing incorrect inferences which are not sustainable in law, consequently, the appeal deserves to be allowed and the judgment and decree of the Trial Court be restored.

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Sri Rakesh Srivastava, learned counsel for the defendants has primarily urged that the plaintiffs in paragraph 3 has stated the mode of acquiring the property in question, however, the said pleadings are not very clear.

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It is also urged that it is for the plaintiffs to have established their case on their own merits and they are not permitted to draw any benefit from the weakness of the defence.

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The learned counsel for the respondents further submits that the plaintiffs could not establish either the gift deed executed by Mirza Asghar Hussain bearing Paper No. A-62 by examining any attesting witness. Even the receipts issued by the riyasat Nanpara could not be proved as P.W. 2 who is said to be the erstwhile employee of Nanpara estate could not identify the signatures of the person issuing the said receipts.

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It is further submitted that in absence of adequate proof, the title of the plaintiffs, could not be confirmed. On the other hand, it was established that Mst. Rajjan being the daughter of Hidayat Ali @ Ghissu would have 1/4th share and in absence of any partition, she could not be ousted from the property of which she was also a co-owner. It is further urged that the property belonged to Ahsan Ali, the common ancestor and certain documents were filed which clearly indicated that in a remote point of time, much prior to the institution of the suit, there were extracts of Khasra Abadi which indicated the names of both Mohsin Ali and Faiyaz Ali. This clearly indicated that the property was in their names jointly and each would have an equal share and thus the plaintiffs could only inherit half share of Faiyaz Ali which devolved on his two sons Hidayat Ali @ Ghissu and Maqsood Ali. Out of the share of Hidayat Ali @ Ghissu, it would devolve on his daughter namely Mst. Rajjan whereas the plaintiffs together would have 1/4th share while the defendants would have half share.

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These facts were not appropriately considered by the Trial Court who merely referred to the said documents but did not consider the oral evidence which would indicate that the said documents which were relied by the plaintiffs were not proved. The sale deed in favour of the defendants dated 18.10.1966 coupled with the commissioner’s report indicated the possession and rights of the defendants and thus the findings recorded by the Lower Appellate Court are based on proper appreciation of both oral and documentary evidence and being pure findings of fact are not entitled to be disturbed under Section 100 C.P.C. The judgment passed by the Lower Appellate Court does not require any interference and as such the

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appeal is devoid of merits and is liable to be dismissed.

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The Court has heard the learned counsel for the parties and also perused the material on record including the written submissions filed by the learned counsel for the respective parties.

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In the aforesaid factual backdrop and after noticing the substantial questions of law which have been reproduced in the earlier part of this judgment it would indicate that the controversy can be narrowed down and can be split into three parts which will answer all the questions involved:-

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i) The property in question was jointly succeeded by Mohsin Ali and Faiyaz Ali. This is on the basis of the Khasra Abadi document A-34 dated 10.08.1901.

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(ii) The effect of the receipts issued by riyasat Nanpara in favour of Faiyaz Ali and payment of taxes by him in respect of the disputed property?

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(iii) The fact whether any partition had been arrived at between the parties which is in context with paper no. A-27 which was filed by the defendants to establish that the partition had occurred on the basis of a Panchnama.

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In the aforesaid backdrop, the case of the parties can be crystallized, inasmuch as, the plaintiffs clearly stated that the property was acquired by Sri Faiyaz Ali by his own means after having acquired the same from riyasat Nanpara through litigation and from Mirza Asghar Hussain. This is contradicted by the defendants on the plea that the property in question belonged to Sri Ahsan Ali, the common ancestor and thus the defendants would have a right by succession.

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The other ground of resistance is the sale deed dated 18.10.1966 by

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which some part of the property in dispute was purchased from Sri Shahanshah Hussain, the erstwhile owner as stated in paragraph 14 of the written statement. The issue of the partition will only survive if it is found that the property actually belonged to Ahsan Ali. If the property was acquired by Faiyaz Ali exclusively then apparently there was no question of any settlement/partition with the defendants as they belonged to a different branch. It is for the aforesaid reason that the said document bearing Paper No. A-34 filed by the defendant assumes significance.

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From the perusal of the said document, it would indicate that it is said to have been issued by Municipal Board, Nanpara and is a Kasba Abadi extract dated 18.08.1901 wherein in respect of Plot No. 3917 of which Raja Sahab Bahadur Nanpara is the owner that it is found to be in possession of Faiyaz Ali and Mohsin Ali son of Ahsan Ali having equal shares. The record would go on to show that the Lower Appellate Court has based its judgment primarily on this document holding that this document clearly established that the property was of Ahsan Ali and therefore joint. It also went on to hold that the plaintiff-witness No. 4 and 5 who have denied the settlement/compromise through the Panchayat is also not appropriate as the said witnesses have appeared to have been won over by the plaintiffs.

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It is in the aforesaid backdrop it found that the property was joint and the fact that the partition through the Panchayat had been affected also gives credence to the fact that the property was joint and partitioned as per the family settlement arrived at before the Panchayat, consequently, the suit did not deserve to be decreed. It also went on to hold that the plaintiffwitness nos. 1 and 2 could not establish the title appropriately as the P.W. 1

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could not prove the documents and he also did not examine any attesting witness of the gift said to have been executed by Mirza Asghar Hussain despite one of the witnesses being alive.

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The receipt issued by the Nanapara Estate were sought to be proved by P.W. 2 Sri Syed Ali but on crucial points, he also could not establish the issuance of the receipts and who had issued it and thus for the aforesaid reasons, no title could have been conferred exclusively and that since the property was joint even if at all Faiyaz Ali was paying the taxes it was for the family and that could not give him exclusive rights. Having noticed the contents of the judgment as well as perusal of the evidence in shape of documents as well as oral, this Court finds that the plaintiffs have clearly set up a case that the property was acquired by Faiyab Ali. The mode of acquisition was from the riyasat Nanpara, gift by Mirza Asghar Hussain as well as from litigation.

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In order to prove his contentions, the plaintiffs had filed various documens which were marked as Exhibit -1 to Exhibit-31. The gift deed was marked as Paper no. C-62. Primarily, these were two sets of documents, one which were issued by the Nanpara Estate and in furtherance thereof there are various permissions granted by the notified area Nanpara in pursuance whereof the plaintiff is said to have levelled the ground which was in the shape of pits and also raised constructions and as such all these receipts including payment of taxes in respect thereto are in the name of Faiyaz Ali and are from the year 1922 onwards.

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In this backdrop, it would be seen that the plaintiff examined himself to connect the said document and examined P.W. 2 who was the erstwhile

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employee of the Nanpara Estate. The Lower Appellate Court has disbelieved the statement of P.W. 2 on the ground that he could not indemnify the signatures on Exhibits- 23, 24 and Exhibits No. 27 and 2, however, the fact remains that the Lower Appellate Court has merely culled out sentences from the deposition of P.W. 2. From the perusal of the testimony of P.W. 2, it would reveal that he stated categorically that he was the cousin of the Rani Sahiba of Nanpara and that he has been in the Nanpara estate since 1930. He further stated that he was the power of attorney holder of both the Rani as well as the Raja Sahab, Nanpara. He explained that a number of receipts were issued by the Assistant Manager of the Nanpara Estate and the documents Exhibit- 23, 24, 27 and 28 were also such documents which were issued by the Estate under the signatures of Ziledar. He also identified that the said receipts which were having seal of the Nanpara Estate. He further stated that he was in the estate from 1930 to 1955 and further stated that he could not identify the signatures on Paper No. C-55 and C-56 marked as Exhibits- 23 and 24. The text and tenor of the evidence would show that it could not be disputed or proved to the contrary that the P.W. 2 was not with the Nanpara Estate. He clearly established the manner in which the property of the Nanpara was leased out to various persons. He also recognized and identified that the receipts which had been filed by the plaintiff-appellant were usually issued by the Estate and since there were large number of Thekedars and such kind of receipts and licenses (Sayor) were issued.

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It is also to be noticed that he had clearly stated that he was with the Estate since 1930 to 1955 and that he had come to depose on 06.12.1979

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and was about 70 years of age also he had left the Estate more than 20 years ago. In the aforesaid backdrop, if the testimony is seen, it would be found that the inferences drawn by the Lower Appellate Court is not quite correct. There is nothing on record nor in the evidence of the defendants to disprove the fact that the land in question did not belong to the Nanpara estate and that the receipts were not issued. In absence of any contrary evidence, also noticing the fact that there has been a consistent pattern of the evidence, the documents which have been brought on record which give credence to the statement of the defendants that the property belonged to the Nanpara Estate which was given on license to the predecessors of the plaintiffs for which sayor (license fee) was paid by Faiyaz Ali.

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In so far as the gift deed is concerned, it would be seen that it was of the year 21^st October, 1922 marked as Paper No. C-62. The said document was also corroborated from the testimony of P.W. 2 who stated that the Nanpara Estate had given the said property to Mirza Asghar Hussain who thereafter had settled in Lucknow and therefore he had gifted the said property to Faiyaz Ali. This document C-62 has been discarded on the ground that no attesting witness was produced. In this regard, it would be found that the said document is stated to be of the year 1922 and has been filed in a suit filed in the year 1974 i.e. after more than 50 years of its execution.

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It was candidly stated by the plaintiff-witness that one of the attesting witness is alive but he could not be contacted nor could be produced in evidence. Merely on this ground the said document could not have been discarded as it is for this very purpose that Section 90 and Section 90-A of

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the Evidence Act has been enacted. This Court gainfully refers to the Full Bench Decision of this Court in Ramjas and Another Vs. Surendra Nath and Another; 1980 SCC Online All. 98 wherein the issue referred to the Full Bench was whether the Sub Section 2 of Section 90-A of the Evidence Act as amended by the U.P. Civil Laws controls the operation of Section 90 (1) and (2) of the Evidence Act and after noticing the provisions, purpose of enacting the said provision has been noticed in paragraphs no. 14 to 18 of

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the said report which read as under:-.

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“….14. Section 4 of the Evidence Act deals with presumption.

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“Section 4—Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved; unless and until it is disproved, or may call for proof of it.

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Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it”.

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15. Part I of the Evidence Act deals with relevancy of facts and Part II deals with proof. Chapter V of Part II deals with documentary evidence and one of its sub-chapters concerns presumptions as to documents. It contains Sections 79 to 90-A. Sections 79 to 90-A deals with different conditions and circumstances in which a particular type of presumption can be raised. If the circumstances exist for the raising of a presumption under any of the provisions of the Evidence Act the Court becomes entitled or bound to raise that presumption.

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“Presumptions are either of law or fact. Presumptions of law are arbitrary consequences expressly annexed by law to particular facts; and may be either conclusive, as that a child under a certain age is incapable of committing any crime; or rebuttable, as that a person not heard of for seven years is dead or that a bill of exchange has been given for value. Presumptions of fact are inferences which the mind naturally and logically draws from given facts, irrespective of their legal effect. Not only are they always rebuttable, but the trier of fact may refuse to make the usual or natural inference notwithstanding that there is no rebutting evidence.” (Phipson on Evidence, Twelfth Edition Para 9).

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16. The presumptions under the Evidence Act are only the inferences which a logical and reasonable mind normally draws. Facts and circumstances from which certain inferences follow are indicated in various provisions of the Evidence Act running from Sections 79 to 90-A. As already seen the sections of the Evidence Act lay down different circumstances in which a presumption is to be raised. 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 purpose 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

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can raise presumption under that section. It all depends upon the circumstances available in the case as applicable to a particular document. Hence, even if the case falls under Section 90-A and sub-section (2) thereof is applicable and no presumption can be drawn under Section 90-A(1) it will not exclude the Court from drawing the presumption, if the circumstances permit it to be drawn, under any other provision of the Evidence Act including Section 90 of the Act. The presumption, if available under Section 90, can, therefore, be raised by the Court even after coming to the conclusion that a presumption under Section 90-A is not available.

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17. The presumptions available under Sections 90 and 90-A are also not similar. Section 90(2) permits the raising of the presumption in respect of the signature, handwriting, execution and attestation, while Section 90 permits a presumption only in respect of execution. Section 90 deals with documents which are more than 20 years old while Section 90-A places no such restriction and includes also documents from judicial record. Neither of the two sections, therefore, can be said to be occupying a field which the other exclusively occupies. They deal with different fields and different circumstances and permit different types of presumptions to be raised.

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18. For the reasons given above it is not possible to hold that sub-section (2) of Section 90-A will override and nullify Section 90 if the document, though more than twenty years old, is the basis of the suit or the defence or is relied upon in the plaint or written statement. We are, therefore, of opinion that Om Prakash v. Bhagwan, AIR 1974 All. 389 does not lay down the correct law. For the reasons given above we answer the question in the negative. Let this opinion be laid before the learned single Judge dealing with the appeal.”

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In view of the exposition of law extracted above, apparently, the document was more than 20 years old coming from the proper custody and thus it had a presumption attached to it. This presumption was rightly noticed by the Trial Court but for insufficient reasons has been discarded by the Lower Appellate Court.

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This Court is clearly of the view that the said deed did attract the presumption so also the receipts and the documents of the notified area of Nanpara which were filed by the plaintiffs-appellants. Once the presumption is made available, it would be found that the gift in favour of Faiyaz Ali by Mirza Asghar Hussain also came to be proved and would enure to the benefit of the plaintiff-appellants.

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Thus, the cumulative effect would be that undisputedly the property was of Nanpara Estate which was given to the predecessors of the plaintiff

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Faiyaz Ali who has been paying the tax, improved the land and raised constructions and have been residing therein as its exclusive owner to the exclusion of others and thus the title of the plaintiffs was be proved.

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Now, the other question is regarding the veracity of the document which was filed by the defendant bearing Paper No. A-34 which is the Khasra Abadi of 1901. The Court finds that apart from this solitary document, there was no other document to indicate that at any point of time even prior or subsequent thereto the name of Faiyaz Ali and Mohsin Ali was ever recorded in any document.

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Significantly, the suit was filed on 05.03.1974 and the said document was filed on the record along with the document list bearing No. C-74 on 04.04.1977. The said document is said to be prepared by the Municipal Board, Nanpara on 10.08.1901 but what has been pointed out by the learned counsel for the appellants is that the U.P. Municipalities Act, 1916 only came into force in the year 1916 and thus there was no occasion for the Municipal Board, Nanpara to have issued such a document on 10.08.1901.

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Once such a plea was taken, it was a duty of the defendants to have explained this fact which has not been done. Even before this Court, the learned counsel for the defendants-respondents had attempted to justify the same to indicate that it is a public documents but could not give an answer to the fact as to how the said document came into being in the year 1901 when the U.P. Municipalities Act, 1916 itself came into being in the year 1916. Thus, there is no evidence neither any attempt was mad by the defendants to summon or produce the officials of the Municipal Board to

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prove the said document.

¶114

Even otherwise, it would be seen that the presumption which is available to any given state of things or fact is both forward and backward in the decision of the Apex Court in the case of Ambika Prasad Thakur v. Ram Ekbal Rai, (1966) 1 SCR 758 and the relevant portion thereof reads as under:-

¶115

“15. The survey records of 1892, 1895, 1904 and 1909 disclose that the ancestors of the plaintiffs held some of the frontier plots of Dubha Mal. The High Court was, therefore, asked to draw the inference that then ancestors held those plots during 1845 to 1863 when the Taufir land accreted. The question is whether such an inference should be drawn. Now, if a thing or a state of things is shown to exist, an inference of it continuity within a reasonably proximate time both forwards and backward may sometimes be drawn. The presumption of future continuance noticed in Illustration (d) to Section 114 of the Indian Evidence Act, 1872. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, though on this point the section does not give a separate illustration. The rule that the presumption of continuance may operate retrospectively has been recognise both in India, see Anangamanjari Chowdhrani v. Tripura Soondar Chowdhrani [(1887) LR 14 IA 101, 110] and England, see Bristow v. Cormican [(1878) LR 3 AC 641, 669, 670] , Doe v. Young [(1845) 8 QB 63 : 115 ER 798] . The broad observation in Manmatha Nath Haldary v. Girish Chandra Roy [(1934) 38 CWN 763, 770] and Hemendra Nath Roy Chowdhury v. Jnanendn Prasanna Bhaduri [(1935) 40 CWN 115, 117] that there is no rule of evidence by which one cal presume the continuity of things backwards cannot be supported. The presumption of continuity weakens with the

¶116

¶117

passage of time. How far the presumption may be drawn both backwards and forwards depends upon the nature of the thing and the surrounding circumstances. In the present case the High Court rightly refused to draw the inference from the state of things during 1892 to 1909 that the ancestors of the plaintiffs held frontier plots of Dubha Mal in 1863. The High Court pointed out that even during 1894 to 1905 the ownership of some of the plots had changed and also that the frontier Mal plots and the corresponding Taufir plot were not always held by the same person. In 1845, part of the Mal lands was under water. The frontier Mal lands reformed between 1845 to 1863 were subject to annual inundation. It is well-known that settlement of Char lands are seasonal and temporary. There is a considerable gap of time between 1892 and 1845. It is not safe to assume that the state of things during 1894 to 1905 existed during 1845 to 1863.”

¶118

In this background, it would be seen that apart from this solitary document, there is not a document prior thereto nor any document subsequent thereto which indicates or shows similar entries. On the other hand, there is a consistent pattern of evidence which indicates that all the documents have been singularly in the name of Faiyaz Ali, the predecessor of the plaintiff. The oral evidence which has been led also corroborates the said fact whereas nothing could be indicated by the defendants to prove as to how the said document came into being or to justify the said entry.

¶119

Thus, this Court is of the clear view that the findings returned by the Trial Court on the aforesaid point is duly corroborated by the evidence and this document alone was not enough without any corroborative evidence or evidence to prove that it was issued by the Municipal Board and was issued from the proper custody and in absence thereof relying upon such a solitary

¶120

¶121

document would be mired with danger.

¶122

Having noticed the aforesaid and concluding that the said document in itself did not inspire confidence, accordingly, it cannot be said that the property was joint or that Faiyaz Ali and Mohsin Ali had equal share therein. There is another reason that comes out from the record that there has been no evidence brought on record to indicate that at any point of time Faiyaz Ali and Mohsin Ali were residing together or they formed part of a joint family rather the facts indicate that the predecessor-in-interest of the plaintiffs have been residing in Miriyasi Tola whereas the defendants were earlier residing in Mohalla Quila and then shifted to the property in question.

¶123

In absence of such evidence regarding a joint family and the two brothers Faiyaz Ali and Mohsin Ali living together, there does not appear to be any cogent reason to hold that the property was joint. For the said reason, it cannot be said that Faiyaz Ali would be paying taxes for the family rather the taxes paid by him would be for his exclusive property and it would not enure to the benefit of Mohsin Ali and his descendants.

¶124

Having said that, now the issues that requires to be examined is regarding the defence as raised by the defendants. For the reasons, aforesaid, they have failed to established that the property belonged to Mohsin Ali and Faiyaz Ali. They also could not show that there has been joint possession, living of Mohsin Ali and Faiyaz Ali. The defendants also could not establish as to how they claim that they had acquired some right from the alleged transfer made by Smt. Niyazan in favour of Smt. Nanhei on 05.09.2019 nor the sale deed dated 18.10.1966 said to be executed by

¶125

¶126

Shahanshah Hussain was proved. Mere filing of the documents without establishing the credibility and indicating that they could transfer the title is not going to come to the benefit of the defendants. The basic content of the deed said to have been executed by Smt. Niyazan could not be proved to indicate whether it was a gift or a sale. No effort has been made to prove the title of Shahanshah Hussain.

¶127

Now, the contention regarding the relationship of Mst. Rajjan as daughter of Hidayat Ali is concerned, the evidence of D.W. 1, 3, 4 and 5, if seen together, makes self serving statements whereas no family member could establish the relationship of Mst. Rajjan. On the contrary, there is evidence to suggest that Hidayat Ali @ Ghissu was married to Smt. Niyazan and both died issue less. Hidayat Ali @ Ghissu had died prior to his wife Smt. Niyazan and that there is no evidence on record to suggest that he ever married Smt. Kallo from whom Mst. Rajjan is said to have been born.

¶128

In absence of any clear evidence on the aforesaid point, the Trial Court has drawn the correct inferences and has discarded the contention of the defendants. This has not been appropriately dealt with by the Lower Appellate Court who has merely drawn inferences but not referred to the evidence from which such inference is drawn.

¶129

Once, it is found that the property was not joint and that Mst. Rajjan is not the daughter of Hidayat Ali @ Ghissu. coupled with the fact that the property belonged to riyasat Nanpara who had given the same to Faiyaz Ali who was in its exclusive possession, coupled with the fact that in such circumstance, the issue of partition for family settlement on the basis of

¶130

¶131

document A-27 also pales into insignificance.

¶132

Apart from the aforesaid reasons, that the plaintiffs throughout denied any such partition or settlement and moreover examined Shamim Ahmad and Hayat Ali as P.W. 4 and P.W. 5 respectively who categorically deposed before the court that they had not made the signatures on the document A- 27, the alleged compromise before the Panchayat. They further categorically stated that they never instrumental in mediating or persuading the parties to enter into a settlement whereas the contention of the plaintiff was that the police had intervened and had taken the signatures/thumb impression on a blank document.

¶133

In light of the aforesaid contention and the statements of P.W. 4 and P.W. 5, it was the duty of the defendants to have established their own plea. They miserably failed to establish this fact, accordingly, there is no impact of the document A-27 as it was not adequately proved.

¶134

In light of the aforesaid discussions and taking a holistic view, this Court is of the firm opinion that in so far as the case of the plaintiff is concerned that it was proved in light of the oral testimony as well as the documents filed which are old documents coming from the proper custody and has a consistent pattern showing the name of Faiyaz Ali throughout.

¶135

In light of the principles attracted to evidence in civil cases which are to be decided on the basis of pre-ponderance of probabilities, all the aforesaid document and the evidence points towards the averments made by the plaintiffs to be credible. In the aforesaid backdrop except for a solitary document relating to Khasra Abadi 1901 which also was mired with suspicion which could not be dispelled by the defendants, there was

¶136

¶137

no other document upon which the inference of the property being joint could have been arrived at. The Lower Appellate Court has referred to the said document as revenue papers but it does not appear to be any revenue paper. The defendants also could not establish how the property which was claimed by them came in the hands of Shahanshah Hussain and whether he had the right to transfer the same in the year 1966 when throughout the land and the property has been shown to be in the name of Faiyaz Ali. The defendants also could not establish the relationship of Mst. Rajjan with Hidayat Ali @ Ghissu nor could prove the sale deed which is their source of title dated 18.10.1966 nor the defendants could indicate and prove the title being transferred from Sri Niyazan to Smt. Nanhei.

¶138

It will also be relevant to notice that despite the matter being hotly contested where the plaintiffs have set up a title in themselves which was also done by the defendants but nevertheless through the proceedings, the defendants did not seek any declaration of their rights nor partition and in absence of any clear and cogent evidence to establish the defence, it cannot be said that the plaintiff has not been able to prove his case.

¶139

This Court hastens to add that once the parties knew what case they had to meet and they have led both oral as well as documentary evidence then the burden of proof takes a back seat and the Court is required to sift through the evidence.

¶140

In light of the above, this Court is of the clear opinion that the Trial Court had appreciated the evidence appropriately and the findings drawn by the Trial Court are based on material evidence available on record. The findings of the Lower Appellate Court are not sustainable and suffer from

¶141

¶142

the errors as noticed above.

¶143

In view of the aforesaid, the appeal is allowed. The judgment and decree passed by the Lower Appellate Court dated 23.07.1981 passed in Civil Appeal No. 278 of 1980 by District Judge, Bahraich is set aside and the judgment and decree dated 30.09.1980 passed in Original Suit No. 78 of 1974 by the IInd Additional Munsif, Bahraich is affirmed. In the facts and circumstances, there shall be no order as to costs. The records of the court below be returned expeditiously.

¶144

Order Date:- 14..09.2023

¶145

Asheesh

¶146

Digitally signed by :- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Mahmood Ali and Others v. Smt Rajjan and Others

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Mahmood Ali and Others v. Smt Rajjan and Others

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