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IN THE HIGH COURT OF ORISSA
D.P. Mohapatra, J.
PROMODA KUMAR SAHU AND OTHERS - APPELLANT
Versus
BAIDYANATH MISHRA AND OTHERS - RESPONDENT
Second Appeal No. 254 of 1980
Decided On : 05-07-1988
EVIDENCE ACT, 1872 - SECTION 90 - PRESUMPTION OF DUE EXECUTION AND ATTESTATION - EXTENDS TO CONTENTS OF DOCUMENT IN APPROPRIATE CIRCUMSTANCES - ADMISSIONS BY EXECUTANT - RECITALS IN ANCIENT DOCUMENTS - SECTION 17, 18(2) AND 21 OF THE EVIDENCE ACT.
Fact of the Case:
Plaintiffs filed a suit for declaration of title and recovery of possession of a plot of land, claiming to have purchased it from the original owner, Dinabandhu Sarangi. Defendants claimed title through a sale deed executed by Artatrana Sarangi, who had earlier sold his share in the plot to Dinabandhu. The trial court and the lower appellate court decreed the suit, holding that the sale deed in favor of Artatrana was invalid as he had no title to convey.
Finding of the Court:
The High Court held that the presumption of due execution and attestation under Section 90 of the Evidence Act extends to the contents of the document in appropriate circumstances. In this case, the sale deed was more than 30 years old and was produced from proper custody. The court also held that the recitals in the sale deed could be relied upon as admissions by the executant, and that the document could be admitted in evidence under Section 32(2) of the Evidence Act as a statement made against the proprietary interest of a deceased person.
Issues: 1. Whether the presumption of due execution and attestation under Section 90 of the Evidence Act extends to the contents of the document. 2. Whether the recitals in an ancient document can be relied upon as admissions by the executant. 3. Whether a document can be admitted in evidence under Section 32(2) of the Evidence Act as a statement made against the proprietary interest of a deceased person.
Ratio Decidendi: 1. The presumption of due execution and attestation under Section 90 of the Evidence Act extends to the contents of the document in appropriate circumstances, such as when the document is more than 30 years old and is produced from proper custody. 2. The recitals in an ancient document can be relied upon as admissions by the executant, and can be admitted in evidence under Section 17, 18(2) and 21 of the Evidence Act. 3. A document can be admitted in evidence under Section 32(2) of the Evidence Act as a statement made against the proprietary interest of a deceased person.
Final Decision: The second appeal was dismissed with costs.
JUDGMENT :
D.P. Mohapatra, J. - Defendants 1 to 4 have filed this second appeal against the concurrent decisions of the Courts below decreeing the Plaintiff's suit in part.
2. Respondents 1 to 8 filed the suit, O. S. No. 210 of 1974-1 in the Court of the Munsif, Puri against the Appellants and the Respondent No. 9 for declaration of their title over plot No. 1062 under Khata No. 181 with an area of A0.34 decimals in village Birabalabhadrapur, for recovery of possession of the same from the Defendants and also for declaration of their right of way over plot Nos. 1061 and 1063 belonging to the Defendants. The suit was filed by them in their representative capacity on behalf of the Brahman Mahajana of village Birabalabhadrapur under Order I, Rule 8. Civil Procedure Code. The lower appellate Court dismissed the suit relating to Plaintiffs' claim of right of way.
No appeal or cross-objection has been filed by the Plaintiffs against that part of the decree. As such the Plaintiffs' claim of right of way over the aforementioned two plots does not arise for consideration in this appeal. Relating to the relief or declaration of title and recovery of possession of plot No. 1062 both the Courts below have decreed the Plaintiffs suit.
3. Shorn of unnecessary details, the Plaintiffs' case was tbat plot No. 1062 initially belonged to one Baidyanath Sarangi who died leaving two sons Dinabandhu Sarangi and Artatrana Sarangi. In the partition between Dinabandhu and Artatrana each got half share in the suit plot. On 30th of July, 1946 Artatrana sold his half share in the suit plot to Dinabandhu by the registered sale deed Ext. 7. Thus Dinabandhu became the sole owner of the suit plot. Subsequently on 7-4-1956 Dinabandhu sold the suit plot to the Plaintiffs by the registered sale deed Ext. 1. It transpires that on 3-2-1954 Artatrana executed the sale deed marked Ext. A in favour of one Jagannath Mohanty in respect of the entire suit plot and the said Jagannath Mohanty sold the property to Defendants 1 to 4 by the sale deed executed on 14-8-1967-Ext. B. According to the Plaintiffs, the sale deed (Ext. A) executed by Artatrana in' favour of Jagannath was an invalid and inoperative document which passed no title in favour of the transferee since by the date of its execution the former had lost right, title interest and possession over plot No. 1062. As a necessary consequence of this, the Plaintiffs contend that the sale deed executed by Jagannath in favour of Defendants 1 to 4 was also invalid, inoperative and passed no title to them. It is the further case of the Plaintiffs that Dinabandhu remained in exclusive possession of the suit plot since 30-7-1946 and after 7-4.1956 the Plaintiffs remained in possession of it. Neither Artatrana nor Jagannath nor Defendants 1 to 4 ever possessed the suit land. After the sale in their favour Defendants 1 to 4 tried to disturb the possession of the Plaintiffs over the suit plot due to which a proceeding u/s 145, Criminal Procedure Code was initiated between the parties. The said proceeding terminated in favour of the Defendants. Hence the suit for the reliefs noticed earlier.
4. Defendants 1 to 4. the main contesting parties in the suit, while admitting that the suit plot belonged to Baidyanath and it was partitioned between Dinabandhu and Artatrana after the death of Baidyanath, pleaded that the suit plot was exclusively allotted to Artatrana. It was the further case of the said Defendants that Artatrana never sold the suit plot or his share therein to Dinabandhu but sold it to Jagannath on 3-2-1954 by the sale deed Ext. A. The Defendants also claimed to have perfected their title to the suit land by adverse possession.
5. The trial Court on consideration of the evidence led by the parties held that the Plaintiffs have right, title interest and possession in the suit property and Defendants had not acquired title to it by adverse possession. On these findings the trial Court decreed the suit, declared the right, ti
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