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GAUHATI HIGH COURT
J.N.Sarma, J.
Laisangbam Bimol Singh -Appellant
Versus
Konsam Babulen Singh -Respondent
First Appeal No. 2 of 1988
Decided On : 11-02-1999
EVIDENCE ACT, 1872 - SECTION 90 - SALE DEED - PROOF - PRESUMPTION - VENDOR'S SALEABLE INTEREST - DETERMINATION.
Fact of the Case:
Plaintiff filed a suit for ejectment on declaration of title and mesne profit, claiming ownership of a paddy field purchased from Laishram Chaoba Singh by a registered sale deed in 1953. The defendant denied the purchase and claimed possession of the land since 1966. The trial court dismissed the suit, holding that the sale deed was not proved and the vendor had no saleable interest.
Finding of the Court:
The High Court held that the sale deed was properly proved under Section 90 of the Evidence Act, 1872, as it was more than 30 years old, produced from proper custody, and appeared free from suspicion. However, the court found that the vendor had a saleable interest in only half of the land, as the original land was jointly owned by two persons and the sale deed transferred an area larger than the vendor's share.
Issues: 1. Whether Ext A5 was proved as required by law. 2. Whether the vendor of the plaintiff had saleable interest to the land.
Ratio Decidendi: 1. Section 90 of the Evidence Act creates a presumption of genuineness for documents that are 30 years old, produced from proper custody, and appear free from suspicion. This presumption is rebuttable, but the burden of proof lies on the party challenging the document's genuineness. 2. In determining the vendor's saleable interest, the court considered the original ownership of the land and the area transferred by the sale deed. Since the vendor only had a share in the original land, the court held that the plaintiff could only acquire the vendor's share, not the entire land.
Final Decision: The High Court partly allowed the appeal, modifying the trial court's judgment and decree. It held that the plaintiff had the right, title, and interest to an area measuring .729 acres (3 bigha 4 katha 16 lecha), which was half of the land originally owned by the vendor.
2. The plaintiff brought a suit for ejectment on .declaration of title and with a prayer for mesne profit. The plaintiff No. 1 is the son of plaintiff No.2 and they are living together. Plaintiff No.2 purchased from one Laishram Chaoba Singh a paddy field under Patta No.51/1376 corresponding to new Patta No.51/ 949.
The area of the land is 2.46 acres. The purchase was made by a registered sale deed on 5.12.53 and the land is described in the Schedule of the plaint. It is claimed that the plaintiff was in possession of the land purchased by them. It is stated that by way of family arrangement the land of father was distributed amongst the sons and the land came to the share of the plaintiff No.l. The defendant dispossessed the plaintiff from the land and as such this suit. A written statement was filed wherein the defendant denied all the allegations made in the plaint including the purchase by the plaintiff. It was further stated in paragraph 3 of the written statement that the vendor of the plaintiff had no right, title and interest over the suit land at any point of time and as such by the purchase the plaintiff did not acquire any right, title and interest to the land. It was further claimed by the defendant that he was all along in possession of the land since 1966 getting settlement of the same from the authority. Another written statement was filed subsequently, but I am not so much concerned with issue No. 1 and Issue No.3 only. Issue No. l is with regard to the purchase of the suit land from Laishram Chaoba Singh by registered sale deed 5.12.53. Issue No.3 is whether the plaintiff has right, title and interest over the suit land.
3. On behalf of the plaintiff the following witnesses are examined : (PW 1) Laisangbam Ibomcha Singh-He is the plaintiff No.2 in the suit. This PW 1 was recalled subsequently. PW 2, Laiphrakpam Shamu Singh. PW 3, Kiyam Sulo Singh.
Following defence witnesses were examined: DW 1, Konsam Babulan, (DW 2) Konsam Madhob Singh, (DW 3) Ngangbm Mangoljao Singh.
Certain documents were also exhibited. The learned Judge took up issue Nos 1, 3, 4 and 6 for decision together. The sale deed is Ext A5. The learned Judge in paragraph 5 and 6 of his judgment held that the sale deed was not proved and in arriving at this decision, the learned Judge placed reliance on the following cases : (1) AIR 1972 Assam and Nagaland 15 (Bhutkani Nath & others vs. Mt Kamaleswari Nath & another); (2) AIR 1957 SC 857; Mobarik Ali Ahmed vs. State of Bombay); (3) AIR 1968 Bombay 112 (Sir Mohammed Yusuf & another vs. D & another).
4. AIR 1972 Assam and Nagaland (supra) is a Division Bench judgment and in paragraph 6 of the judgment the Court pointed out the following :
“... It is, however, well settled that when execution of a document is being challenged the certificate of registration alone will not be sufficient proof of the due execution of the document. Registration does not dispense with the necessity of proof of execution when the same is denied. It is true that a sale deed is not required by law to be attested. Even then, proof of execution of a sale deed when it is denied will have to be furnished as in the case of any other document under section 67 of the Evidence Act....
Execution of a document is not mere signing of it. It is a solemn act of the execution who must own up the recitals in the instrument and there must be clear evidence that he put his signature in a document after knowing fully its contents....”
This decision is squarely binding on me. But in the present case the facts are absolutely different as will be highlighted at later point of time.
5. AIR 1957 Supreme Court (supra) is a criminal appeal and there the law laid down with regard to the question of proof is as follows:
“The proof of the genuineness of a document is proof of the authorship of the docum
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