JUDGMENT :

1. Being aggrieved and dissatisfied with the order no. 272 dated 3.1.2019 and order no. 275 dated 11.2.2019 passed by the learned Civil Judge (Junior Division), 3rd Court, Tamluk, Purba Midnapore in Title suit no. 51 of 1993, the present application under Article 227 of the Constitution of India has been preferred.

2. The petitioner contended that petitioner had filed aforesaid suit for declaration of title and permanent injunction against the opposite parties herein. The defendant nos. 1,2 and 3 are contesting the suit by filing written statement and on behalf of the plaintiff, five witnesses were examined. On 7th July, 2018 during Examination-in-chief of DW1, on behalf of defendant no. 1, several deeds were tendered for marking exhibit after dispensing with formal proof since the documents are 30 years old. The plaintiff had raised objection against such prayer of defendant no. 1 on the ground that those deeds are not relevant to the suit in question, and that said deeds are less than 30 years old and as such those deeds should not be marked as exhibit on tender, taking aid from Section 90 of Evidence Act. Such objections were being accepted by the court below and aforesaid deeds were not marked exhibit but marked for identification.

3. Subsequently, on behalf of defendant no. 1, an application was filed on December 5, 2018, stating inter alia, that on 7th July, 2018 at the time of tendering the affidavit in chief those documents were filed and those documents i.e. deeds of conveyance are dated October 5, 1998 and October 6, 1966, 4372 of 1988 and 4355 of 1988, and those deeds became thirty years old by this time, during pendency of suit and for which those documents deserve to be marked as exhibit taking aid from Section 90 of Evidence Act, which are awaiting for marking exhibit before the learned trial court. The said application dated 5.12.2018 came up for consideration on January 3, 2019 and the trial court by the impugned order was pleased to allow the said application of defendant no. 1 and thereby marked seven deeds of conveyance as exhibit M to Exhibit S, discarding the objections raised on behalf of the petitioners herein. Plaintiff/petitioner subsequently filed a petition on 10.1.2019 for modification of order and court below rejected the plaintiff’s prayer for modification of order by the other impugned order dated 11.2.2019. Being aggrieved by both the orders i.e. order dated 3.1.2019 and order dated 11.2.2019, plaintiff/petitioner has come before this court for setting aside said orders.

4. Learned counsel for the petitioners submits that learned trial Judge has acted with material irregularity and arrived at an erroneous decision. Learned trial judge has failed to appreciate that plaintiff had raised objection on July 7, 2018 against marking of deeds in question as exhibit dispensing formal proof and such objection was allowed. Learned trial court has failed to appreciate that 30 years are to be counted on the date when the documents are tendered in evidence for the first time to get the same marked as exhibit, and in the instant case documents were tendered before the expiry of 30 years period and as such at a subsequent period completing 30 years age, defendant cannot take advantage of Section 90 for proving the said deed. Accordingly, the order impugned is liable to be rejected.

5. Learned counsel for the opposite parties supports the judgment passed by the learned court below and contended that though the deeds were filed on July 7, 2018 but practically it was marked exhibit on 3.1.2019 when the court allowed the defendant’s prayer for making those documents as exhibit, as by that time, 30 years have already been completed and accordingly, the trial court rightly marked those documents as exhibit, with the aid of advantage of presumption contained in Section 90.

6. I have considered the submissions made on behalf of both the parties.

7. From the copy of the examination sheet of DW 1, it appears that on