IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA ON THE 4^th OF SEPTEMBER, 2023 MISC. PETITION No. 638 of 2021 BETWEEN:-

1. SMT. GOMTI KUSHWAHA W/O LATE HARPRASAD KUSHWAHA, D/O PUNNAWA, AGED ABOUT 72 YEARS, OCCUPATION: AGRICULTURIST, R/O NAIGUWA TEHSIL NIWADI, DISTRICT-TIKAMGARH, PRESENTLY RESIDING AT NAIBASTI MOHALLA BARUA SAGAR DISTRICT JHANSI (UTTAR PRADESH).

2. SMT. RAMVATI W/O SHRI SITARAM KUSHWAHA, AGED ABOUT 58 YEARS, OCCUPATION: AGRICULTURIST, R/O. NAIBASTI MOHALLA, BARUA SAGAR, JHANSI (UTTAR PRADESH)

.....PETITIONER (BY SHRI RAHUL RAWAT – ADVOCATE )

AND

1. DAYARAM S/O SHRI KULU KUSHWAHA, AGED ABOUT 68 YEARS, R/O NAIGWA, TEHSIL AND P.S. NIWADI, DISTRICT-

NIWADI (MADHYA PRADESH).

2. VIRENDRA S/O SHRI KENCHU KUSHWAHA, AGED ABOUT 21 YEARS, R/O. NAIGWA, TEHSIL AND P.S. NIWADI, DISTRICT-

NIWADI (MADHYA PRADESH).

3. MAHILA DAULATI WD/O. LATE SHRI KENCHU KUSHWAHA, AGED ABOUT 52 YEARS, R/O. NAIGWA, TEHSIL AND P.S. NIWADI, DISTRICT-NIWADI (MADHYA PRADESH). (DIED AND NAME DELETED AS PER COURT ORDER DATED 28.08.2023.)

4. SMT. KUSMA D/O KENCHU W/O LATE BABULAL KUSHWAHA, AGED ABOUT 27 YEARS, R/O. VILLAGE LADWARI, TEHSIL NIWADI, DISTRICT-NIWADI (MADHYA PRADESH).

5. SARMAN S/O SHRI DAYARAM KUSHWAHA, AGED ABOUT 30 YEARS, R/O. NAIGWA, TEHSIL NIWADI, DISTRICT-NIWADI (MADHYA PRADESH).

6. RAJU S/O SHRI DAYARAM KUSHWAHA, AGED ABOUT 25 YEARS, R/O. NAIGWA, TEHSIL NIWADI, DISTRICT-NIWADI (MADHYA PRADESH).

7. NANDU S/O SHRI DAYARAM KUSHWAHA, AGED ABOUT 22 YEARS, R/O.NAIGWA, TEHSIL NIWADI, DISTRICT-NIWADI (MADHYA PRADESH)

8. STATE OF MADHYA PRADESH, THROUGH COLLECTOR, NIWADI (MADHYA PRADESH).

.....RESPONDENTS (BY SHRI MOHAN SAUSARKAR – GOVERNMENT ADVOCATE FOR RESPONDENT/STATE)

This petition coming on for admission this day, the court passed the following:

ORDER

This petition under Article 227 of the Constitution of India has been filed against the orders dated 07.02.2019 and 16.12.2020 passed by Civil Judge Class-I Niwadi, District-Tikamgarh in RCSA No.06/2017.

2. It is submitted by counsel for the petitioner that the petitioner has filed an application under Section 45 of the Evidence Act for sending the disputed sale-deed to a hand-writing expert to verify the thump impression because the so called sale-deed was never executed by the petitioner and the respondent/defendant by producing some other lady got it executed. By order dated 07.02.2019, the said application was rejected on the ground that since the sale-deed in question is a registered document therefore, there is a presumption that the document must have been executed properly. It is submitted that instead of challenging the said order, the petitioner erroneously filed another application, which has been rejected by order dated 16.12.2020 on the ground that the similar application has already been rejected by order dated 07.02.2019.

3. Challenging the order passed by Court below, it is submitted by petitioner that it is the case of the petitioner that they have never executed the sale-deed in question and it appears that the defendants have got executed the sale-deed by producing some other lady before the Sub- Registrar. Accordingly, it is submitted that trial Court should have allowed the application filed under Section 45 of the Evidence Act.

4. None for the respondents.

5. Heard the submissions made by learned counsel for the petitioner.

6. The Trial Court by order dated 07.02.2019 had rejected the application only on the ground that since the sale-deed dated 06.09.1985 is a registered document therefore, prima-facie there is no possibility that any other lady might have been produced in place of the petitioner Gomati.

7. The answer lies in the order passed by the trial Court itself. The trial Court was right in drawing a presumption that once the document is a registered document then the presumption of correctness can be attached to it but at the same time, the trial Court lost sight of the fact that the presumption is rebuttable presumption. Once the