1. 1. In this appeal, the appellant has raised an important point of law with respect to the time of raising presumption under Section 90 of the Indian Evidence Act, 1872 (for short 'the Evidence Act').

2. The relevant facts for the purpose of deciding this point are that a document alleged to have been executed on Migsar-sudi 15 Samvat Year 1987 by one Lala Chamar in favour of plaintiff Shyamlal's father Kanakmal. This document Ex.A.1 is one of the basis in the judgment of the trial court for deciding issue No.4 in favour of defendant No.1 for holding that defendant No.1 proved the fact that the disputed plot was mortgaged by Lala Chamar in favour of Kanakmal and since then the plot in dispute is in possession of defendant No.1.

3. While deciding issue no.4, the trial court in the judgment, at the request made during course of final arguments, raised the presumption under Section 90 of the Evidence Act 1872 with respect to the document Ex.-A.1 and held that since the document is more than 30 years old, therefore, presumption is raised with respect to the thumb impression of Lala over Ex,A.1 and document was found duly executed by Lala.

4. The learned counsel for the appellant submits that the presumption was raised in the judgment itself which could not have been raised for the reason that the defendant Shyam Lal availed the opportunity of proving the document Ex.A-1, produced the witnesses to prove the document and after failing in proving the document, all of sudden during the course of final argument before the trial court, made request to raise presumption under Section 90 of the Evidence Act. According to the learned counsel for the appellant, once a party undertakes to prove a document and lead evidence to prove the document then the party cannot ask for drawing inference under Section 90 of the Evidence Act and even if a presumption under Section 90 of the Evidence Act is permissible even then this presumption cannot be raised after evidence of the parties and while deciding the suit itself.

5. The learned counsel for the respondents vehemently submitted that a bare reading of Section 90 of the Evidence Act makes it clear that presumption under Section 90 can be raised at any stage and presumption under Section 90 is in the discretion of the court. When there is no limitation provided under the law for raising presumption under Section 90 of the Evidence Act then the court can raise presumption at any stage including at the time while deciding the suit and there is no requirement that presumption must be raised before evidence or cannot be raised after evidence, Requirement under Section 90 of the Evidence Act is only that (a) a document must be 30 years old and (b) produced from the proper custody (c) the court in its discretion thinks it proper to raise presumption. According to the learned counsel for the respondents, the respondents proved that the document is old more than 30 years and the document is coming from the proper custody and the trial court has exercised discretion in favour of the raising presumption under Section 90 of the Evidence Act, therefore, there is no illegality in it.

6. The learned counsel for the respondents heavily relied upon the judgment of this Court delivered in the case of Lalit Kishore v. Laxminarayan (1968 RLW 308) wherein the learned Single Judge of this Court as he then was, held that even when request to raise a presumption under Section 90 of the Evidence Act was made towards the close of the trial even then the court is not debarred from raising the presumption simply because the plaintiffs did not make their application earlier or led evidence to prove the execution of the document, The relevant portion is required to be quoted here which reads as under :

"It is admitted however that even though the plaintiffs did not initially make an application requesting the trial court to raise a presumption u/sec. 90 of the Evidence Act regarding the genuineness of document Ex.2, th