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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.11898 OF 2018

Vikas s/o Ramrao Natu,

Age-53 years, Occu-Agriculture,

R/o Subashnagar, Kinwat,

Tq.Kinwat, Dist.Nanded

-- PETITIONER

VERSUS

1.

Vikas s/o Dogla Chavan,

Age-39 years, Occu-Agriculturist,

2.

Ulhas s/o Dogla Chavan,

Age-42 years, Occu-Agriculturist,

3.

Prakash s/o Dogla Chavan,

Age-36 years, Occu-Agriculturist,

4.

Smt.Subhabai w/o Dogla Chavan,

Age-63 years, Occu-Hosuehold,

All r/o Bendi (Tanda), Tq.Kinwat,

District Nanded.

-- RESPONDENTS

Mr.A.A.Mukhedkar, Advocate for the petitioner.

Mr.R.R.Shaikh, Advocate for respondent Nos. 1 to 4.

( CORAM : Ravindra V.Ghuge, J.)

DATE : 07/03/2019

ORAL JUDGMENT :

1.

Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

khs/MARCH 2019/11898-d

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2.

The petitioner/original plaintiff in RCS No.16/2010 is

aggrieved by the order dated 10/04/2018 passed by the Trial Court

below Exh.127 thereby refusing to exhibit an original sale deed which

is said to be registered at Entry No.898 and which is dated

15/06/1982.

3.

The contention of the petitioner is that he has referred to the

said document in paragraph No.2 of his affidavit in lieu of his

examination in chief. The said original document was produced on

record alongwith the plaint. Once an original document with specific

pleadings in the plaint or the written statement, as the case may be,

is placed on record, such a document needs to be exhibited and

granting an exhibit number would not mean that the contents of the

document are proved.

4.

Learned Advocate for the defendants strenuously submits that

the Trial Court was right in recording its conclusions in the

impugned order that the said document was not referred to in the

examination-in-chief. The recording of oral evidence in the case had

concluded and it is only at the stage of advancing final arguments

that application Exh.127 was filed on 04/09/2017.

5.

I have perused the examination in chief cited by the plaintiff

khs/MARCH 2019/11898-d

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and especially paragraph No.2. The plaintiff has only mentioned that

he has purchased the suit land from Dogla P. Ramdas Chavan by a

registered sale deed on 15/06/1982 with Registration No.898. Even

if this is presumed to be a passing reference made to the registered

sale deed, I find that the requirements of the Evidence Act for proving

the contents of a document have not been fulfilled by the plaintiff.

6.

Learned Advocate for the plaintiff submits at this juncture that

he would make an application to the Trial Court for permission to

lead additional evidence so as to prove the contents of the said

registered sale deed, Learned Advocate for the defendants submits

that heavy costs deserve to be imposed if this request is to be

accepted as the plaintiff has reacted at a belated stage. Such costs

can be donated for the treatment of poor patients.

7.

I have recently delivered a judgment on 27/02/2019 in the

matter of Smt.Saheb Bi w/o Shaikh Jani and others Vs. Shaikh

Azam s/o Shaikh Mehmood and others, WP No.8931/2016 wherein I

have dealt with the deeming effect of Section 90 of the Evidence Act,

by which the contents of a document, which is 30 years old, are

presumed to be proved. I have concluded in the said judgment, by

relying upon a pronouncement of the Hon'ble Apex Court, that such

presumption has to be proved to be genuine and is not available

khs/MARCH 2019/11898-d

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mechanically. It would be apposite to reproduce paragraph Nos.7 to

12 of the said judgment hereunder :-

“7.

Section 90 reads as under :-

"90. Presumption as to documents thirty years old - Where

any document, purporting or proved to be thirty years old, is

produced from any custody which the Court in the particular

case considers proper, the Court may presume that the signature

and every other part of such document, which purports to be in

the