# Manjoor Ali and another v. Kishmat Ali and others

- **Citation:** (2004) 1 ILRA 296
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-03-24
- **Case number:** Second Appeal No.1669 of 1988
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manjoor-ali-and-another-v-kishmat-ali-and-others-40350
- **Pages:** 7

## Headnote

(A) Evidence Act, 1872-Ss 90 and 63Presumption
under-AvailabiltySecondary
evidence-Admissibility-Suit
for permanent basis of sale deed more
than 20 years old-Original sale deed not
produced-only copy filed-No statement
or evidence led by plaintiff to prove loss
or destructions of original sale deed-No
presumption as to execution under S. 90
can be drawn in favour of plaintiff.

Held: Para 11

Presumption of genuineness may be
raised where the document is produced
from a proper custody. However, in view
of the provisions of section 90 of the Act,
it is the discretion of the Court to accept
the presumption flowing from section

## Text

296 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
35. In such circumstances, writ
petition is allowed. The order dated
29.1.1990 is hereby quashed. Interim
order, if any, stands discharged.

36. Till the decision of the
Prescribed Authority, referred to above,
parties shall maintain status quo as
prevailing till date with regards to office
of President of the Sansthapak Mandal.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2004

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Second Appeal No.1669 of 1988

Manjoor Ali and another
...Appellants
Versus
Kishmat Ali and others ...Respondents

Counsel for the Appellants:
Sri N.C. Rajvanshi

Counsel for the Respondents:
Sri Irshad Ali

(A) Evidence Act, 1872-Ss 90 and 63Presumption
under-AvailabiltySecondary
evidence-Admissibility-Suit
for permanent basis of sale deed more
than 20 years old-Original sale deed not
produced-only copy filed-No statement
or evidence led by plaintiff to prove loss
or destructions of original sale deed-No
presumption as to execution under S. 90
can be drawn in favour of plaintiff.

Held: Para 11

Presumption of genuineness may be
raised where the document is produced
from a proper custody. However, in view
of the provisions of section 90 of the Act,
it is the discretion of the Court to accept
the presumption flowing from section
90. In the present case, the mere
production of the certified copy of the
sale deed was not by itself sufficient to
justify the presumption of the execution
of the original under section 90. The
provisions of section 90 has to be read
alongwith section 65 of the Act. Mere
production of a certified copy of the sale
deed
is
not
sufficient
to
draw
a
presumption under section 90. It must
be shown that the document produced
was a copy admitted as secondary
evidence under section 65 of the Act.

(B) Civil Procedure Code-S. 100- Second
appeal-concurrent findings of fact by
Courts below-No interference.

Held: Para 14 & 16

In the present case, the plaintiff has only
produced a copy of the sale deed and has
not stated in his plaint or led evidence,
nor laid the foundation for admission of
the secondary evidence by proving the
loss
or
destruction
of
the
original
document. Nothing has been shown by
the plaintiff-appellants as to why the
original
document
could
not
be
produced. Thus, the presumption under
section 90 could not be drawn in favour
of the plaintiff. I therefore, hold that in
the present case, the presumption under
section 90 of the Act, was not available
on the copy of the sale deed dated
16.5.1933.

On the question as to whether the sale
deed conferred any right to the plaintiffappellants, I find that both the Courts
below have given concurrent findings of
fact to the extent that the name of Mst.
Maida was never recorded in the revenue
records and that she had no right to
execute the sale deed in favour of the
plaintiffs' father. Further, the Courts
below
have
held
that
no
action
whatsoever was taken by the plaintiffs'
father or by the plaintiffs to get their
names mutated in the revenue records or
to take possession and therefore, the
sale deed was never acted upon. The
Courts below further found that Mst.
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1 All] Manjoor Ali and another V. Kishmat Ali and others 297
Maida did not have full ownership of the
property in question and that the sale
deed did not indicate the extent of her
share in the disputed property. Both the
Courts below have relied upon the
judgment of the Deputy Director of
Consolidation dated 14.1.1972 under
section 48 of the U.P. Consolidation of
Holdings Act 1953[ hereinafter referred
to as the Act] in which it was held that
the plaintiffs were neither recorded nor
were in possession over the plots in
question on the basis of the sale deed
before the date of vesting. Both the
Courts below after appreciating the
evidence on record have given a finding
that the sale deed did not confer any
right upon the plaintiffs. In view of the
concurrent findings of fact given by the
Courts below, I see no justification to
interfere in the findings of fact recorded
by the Courts below, namely that the
sale deed did not confer any right upon
the plaintiffs.
Case law discussed:
AIR 1980 All 385
AIR 1981 All 274
(1996) 8 SCC 357

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The plaintiff-appellants filed a
suit for a permanent injunction against the
defendants
restraining
them
from
interfering with their peaceful possession
on the land in dispute as shown in the
plaint map. It was alleged that the
disputed land was the house of Mst.
Maida, who had executed a sale deed dt.
16.5.1933 in respect of her one pai share
in favour of the father of the plaintiffs and
since
then,
the
plaintiffs
were
in
possession of the same. It was further
alleged that the house collapsed about 10
years back. Thereafter, the plaintiffs were
using the land for keeping and drying
cowdung etc. and for other similar
purposes. It was alleged that when the
plaintiff started storing the bricks etc. for
constructing a new house over the land in
question,
the
defendants
started
interfering with the plaintiffs' possession
and tried to take possession.

2. The defendant Ist set contested
the suit contending that the plaintiffs were
never in possession of the land in dispute.
The names of the plaintiffs' were never
recorded in the revenue records on the
basis of the sale deed. The house in
dispute did not belong to Mst. Maida and
her name was never recorded in the
village records. The defendant further
contended that he had purchased one half
pai share of Mst. Maida vide sale deed
dated 24.8.1928 and inherited one pai
share before the enactment of U.P.
Zamindari Abolition and Land Reforms
Act. The defendant also claimed that he
had purchased the share of the daughters
of Mst. Maida and was in possession of
the disputed land for more than 12 years
and that the sale deed filed by the plaintiff
did not show that the house belonged to
Mst. Maida. It was also alleged that the
claim of the plaintiffs was liable to be
rejected in view of the decision of Deputy
Director of Consolidation dated 14.1.1972
in consolidation proceedings.

3. The defendant 2nd set stated that
Salim had acquired the disputed land after
paying a Nazrana and that they are in
possession of the land in question and that
no house of Mst. Maida existed on the
disputed land and that the sale deed is a
forged document.

4. The trial Court after framing the
issues
and
recording
the
evidence
dismissed the suit of the plaintiff holding
that the plaintiffs are not the owners of the
land in dispute nor were they in
possession of it and therefore the
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298 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
plaintiffs were not entitled to the relief of
a permanent injunction. The trial Court
further found that no action was taken by
the plaintiffs or their father to get their
names mutated in the revenue records on
the basis of the sale deed nor were the
plaintiffs in possession of it. The trial
Court further found that the defendant
no.1 was in exclusive possession of the
land in dispute.

5. The appellate Court also come to
the same conclusion and dismissed the
appeal of the plaintiffs with costs. The
appellate Court held that the name of Mst.
Maida did not exist in the revenue records
and therefore, Mst. Maida had no right to
sell the plot to the plaintiffs' father. The
sale deed dated 16.5.1933 did not confer
any right upon the plaintiffs' father or
upon the plaintiffs. The appellate Court
further held that the disputed sale deed
did not indicate the exact share of Mst.
Maida or the portion of the disputed
house that was being sold. The appellate
Court held that the plaintiffs could not
prove that the disputed house was owned
by Mst. Maida. The appellate Court
further held that since the original sale
deed was not filed, the presumption
envisaged under section 90 of the
Evidence Act to the extent that the sale
deed was validly executed, being a
document more than 20 years also, would
not apply in view of section 90-A[2] of
the Evidence Act, which states that the
presumption about the validity of the
document shall not be made in respect of
a document which is the basis of a suit
and is relied upon in the plaint. The
appellate court held that proper execution
of the sale deed had not been proved by
the plaintiffs. The appellate Court further
held that even though the village is a
partitioned village, the plaintiff had not
given any Sikami number of the disputed
land. The appellate Court further found
that the plaintiff could not prove his
possession over the land in question and
that the judgment of the Deputy Director
of
Consolidation
showed
that
the
defendants' father was recorded as the
owner of the plot in question.

6. Aggrieved by the judgment of the
courts below, the plaintiff preferred the
present second appeal under section 100
of the Code of Civil Procedure. At the
time of the admission of the second
appeal,
the
following
substantial
questions of law were framed namely--
1.
Whether the sale deed dated
16.5.1933 conferred no right upon the
plaintiff appellants ?

2.
Whether the presumption under
section 90[2] of the Evidence Act was
available to the certified copy of the
sale deed dated 16.5.1933 ?

3.
Whether the presumption under
section 90[2] of the Evidence Act will be
deemed to be taken away by the
provisions of section 90-A [2] of the
Evidence Act because the aforesaid
deed was the basis of the plaintiffs
claim ?

In order to evaluate the aforesaid
questions of law, it is necessary to
consider the provisions of sections 90 and
90-A of the Indian Evidence Act 1872, as
applicable in the State of U.P., as
amended by U.P. Act No.24 of 1954,
which reads as under :

"90.(1)

Presumption
as
to
documents twenty years old-Where
any document, purporting or proved to
be twenty years old, is produced from
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1 All] Manjoor Ali and another V. Kishmat Ali and others 299
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
handwriting of any particular person,
is in that person's handwriting, and, in
the case of a document executed or
attested, that it was duly executed and
attested by the persons by whom it
purports to be executed and attested."

(2) Where any such document as is
referred to in sub-section (1) was
registered in accordance with the law
relating to registration of documents
and a duly certified copy thereof is
produced, the Court may presume that
the signature and every other part of
such document which purports to be in
the handwriting of any particular
person, is in that person's handwriting,
and in the case of a document executed
or attested, that it was duly executed by
the person by whom it purports to have
been executed or attested."

"90-A. [1] Where any registered
document or a duly certified copy
thereof or any certified copy of any
document which is part of the record of
a Court of justice, is produced from
any custody which the Court in the
particular case considers proper, the
Court may presume that the original
was executed by the person by whom it
purports to have been executed.

[2] This presumption shall not be
made in respect of any document which
is the basis of a suit or of a defence or is
relied upon in the plaint or written
statement.

The explanation to sub-section [1]
of Section 90 will also apply to the
section."

A Full Bench of this Court in Ram
Jas and others v. Surendra Nath and
another, AIR 1980 [Alld.] 385 held as
follows :

"The
presumptions
under
the
Evidence Act are only the inferences,
which a logical and reasonable mind
normally draws. Facts and circumstances
[from] which certain inferences follow are
indicated in various provisions of the
Evidence Act running from Sections 79 to
90-A. As already seen the sections of the
Evidence
Act
lay
down
different
circumstances in which a presumption is
to be raised. Whenever the law permits
the raising of a presumption the Court can
by reason of Section 4 of the Evidence
Act raise the presumption for purpose of
proof of a fact. If the presumption is
available in one section it can raise it
under that section. If it is not available in
one section and is available in another
section,
then
the
Court
can
raise
presumption under that section. It all
depends upon the circumstances available
in the case as applicable to a particular
document. Hence, even if the case falls
under Section 90-A and sub-section [2]
thereof is applicable and no presumption
can be drawn under Section 90-A[1] it
will not exclude the Court from drawing
the presumption, if the circumstances
permit ;it to be drawn, under any other
provision of the Evidence Act including
Section 90 of the Act. The presumption, if
available under Section 90, can therefore,
be raised by the Court even after coming
to the conclusion that a presumption
under Section 90-A is not available.

7. The presumptions available under
Sections 90 and 90-A are also not similar.
Section 90[2] permits the raising of the
presumption in respect of the signature,
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300 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
handwriting, execution and attestation,
while Section 90 permits a presumption
only in respect of execution. Section 90
deals with documents which are more
than 20 years old while Section 90-A
places no such restriction and includes
also documents from judicial record.
Neither of the two sections, therefore, can
be said to be occupying a field, which the
other exclusively occupies. They deal
with
different
fields
and
different
circumstances and permit different types
of presumptions to be raised.

8. For the reasons given above, it is
not possible to hold that sub-section [2] of
Section 90-A will override and nullify
Section 90 if the document, through more
than twenty years old, is the basis of the
suit or the defence or is relied upon in the
plaint or written statement."

9. In AIR 1981[Alld] 274, Smt.
Vidya Devi and others v. Nand Kumar,
it was held-

"In my opinion there is no conflict
between the provisions of Section 90 as
amended in U.P. and Section 90-A as
added in U.P. though they are designed to
operate in different fields. Yet they can
operate simultaneously over a limited
common area also. They do not mutually
exclude the applicability of one by the
other. A document, which is registered
and is also more than 20 years old, cannot
be admitted in evidence under section 90A if it is the basis of the suit or of
defence. Yet it can still be held proved in
view of the provisions of section 90 and a
presumption referred to therein can be
raised in respect of such a document."

10. From the aforesaid it is clear that
section 90-A[2] does not override section
90 of the Evidence Act. Both the sections
operate in different fields. A document
which is registered and which is more
than 20 years old could not be admitted in
evidence under section 90-A[2] if the said
document is the basis of the suit or of
defence. However, the presumption, if
available under section 90, can therefore
be raised by the court even after holding
that the presumption is not available
under section 90-A of the Act. Thus, I
hold, that the presumption under section
90[2] of the Evidence Act is not taken
away by the provisions of section 90-A[2]
of the Act.

11. The question therefore, that
arises in the present case is whether the
presumption under section 90[2] of the
Act was available on the certified copy of
the sale deed dated 16.5.1933 to the
plaintiff. It is relevant to state here that
section 90 of the Act removes the strict
rule of proof of private documents.
Presumption of genuineness may be
raised where the document is produced
from a proper custody. However, in view
of the provisions of section 90 of the Act,
it is the discretion of the Court to accept
the presumption flowing from section 90.
In the present case, the mere production
of the certified copy of the sale deed was
not by itself sufficient to justify the
presumption of the execution of the
original under section 90. The provisions
of section 90 has to be read alongwith
section 65 of the Act. Mere production of
a certified copy of the sale deed is not
sufficient to draw a presumption under
section 90. It must be shown that the
document produced was a copy admitted
as secondary evidence under section 65 of
the Act.

12. The Supreme Court in Lakhi
Baruah and others v. Padma Kanta
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1 All] Manjoor Ali and another V. Kishmat Ali and others 301
Kalita and others, 1996 [8] SCC-357
has held as follows :

"The position since the aforesaid
Privy Council decisions being followed
by later decisions of different High
Courts, is that presumption under Section
90 does not apply to a copy or a certified
copy even though thirty years old; but if a
foundation is laid for the admission of
secondary evidence under section 63 of
the Evidence Act, 1872 by proof of loss
or destruction of the original and the copy
which is thirty years old is produced from
proper custody, then only the signature
authenticating the
copy
may
under
Section 90 be presumed to be genuine."

13. Thus, it is clear that the mere
production of a certified copy of the sale
deed is not sufficient to draw a
presumption under section 90 of the Act.
The plaintiff has to lay the foundation for
admission of the secondary evidence by
proof of loss or destruction of the original,
etc. Only then, the presumption of the
genuineness of the document can be
drawn under section 90 of the Act.

14. In the present case, the plaintiff
has only produced a copy of the sale deed
and has not stated in his plaint or led
evidence, nor laid the foundation for
admission of the secondary evidence by
proving the loss or destruction of the
original document. Nothing has been
shown by the plaintiff-appellants as to
why the original document could not be
produced. Thus, the presumption under
section 90 could not be drawn in favour of
the plaintiff. I therefore, hold that in the
present case, the presumption under
section 90 of the Act, was not available
on the copy of the sale deed dated
16.5.1933.

15. It may also be stated here that
the rule of presumption has to be
exercised with exceeding caution where
circumstances throw suspicion on the
genuineness of a document in which case
no presumption under section 90 can be
drawn. In the present case the discretion
exercised by the lower appellate Court
was sound and reasonable and was not
arbitrary.

16. On the question as to whether
the sale deed conferred any right to the
plaintiff-appellants, I find that both the
Courts below have given concurrent
findings of fact to the extent that the name
of Mst. Maida was never recorded in the
revenue records and that she had no right
to execute the sale deed in favour of the
plaintiffs' father. Further, the Courts
below
have
held
that
no
action
whatsoever was taken by the plaintiffs'
father or by the plaintiffs to get their
names mutated in the revenue records or
to take possession and therefore, the sale
deed was never acted upon. The Courts
below further found that Mst. Maida did
not have full ownership of the property in
question and that the sale deed did not
indicate the extent of her share in the
disputed property. Both the Courts below
have relied upon the judgment of the
Deputy Director of Consolidation dated
14.1.1972 under section 48 of the U.P.
Consolidation of Holdings Act 1953[
hereinafter referred to as the Act] in
which it was held that the plaintiffs were
neither recorded nor were in possession
over the plots in question on the basis of
the sale deed before the date of vesting.
Both the Courts below after appreciating
the evidence on record have given a
finding that the sale deed did not confer
any right upon the plaintiffs. In view of
the concurrent findings of fact given by
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302 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
the Courts below, I see no justification to
interfere in the findings of fact recorded
by the Courts below, namely that the sale
deed did not confer any right upon the
plaintiffs.

17. In view of the aforesaid, the
second appeal is dismissed. However, in
the circumstances, there shall be no order
as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED ALLAHABAD THE: 10.03.2004

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 33921 of 2003

Ram Dhayan Singh

...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri V.K. Ojha
Sri Ramendra Asthana

Counsels for the Respondents:
Sri Suresh Singh
S.C.

Constitution of India-Arts 226, The Writ
Petition against order of cancellation of
termination of non-statutory agreement
arising out of Government orders for
appointments of agents/dealers in food
grains meant for public distribution
system Maintainability, no fundamental
on legal right- relationship of agent with
state
Government
contractual
Alternative
remedy
of
appeal
on
dismissed of appeal remedy of civil suit
available writ petition writ petition, held,
not maintainable-principles of natural
justice-Applicationlity -non-impalement
of complainants-since appeal lies only
against cancellation order, held, it was
not necessary to hear complaints, as
Government order does not prescribe
that complaints should also be heard.

Held: Paras 20 & 21

The case of the Respondents cannot be
said
to
be
either
arbitrary
or
discriminatory so as to attract the
provision of Article 14 of the Constitution
of India.

I am of the opinion that against the
action complained of, the present writ
petitions are not maintainable before
this Court under Article 226 of the
Constitution of India, as the contract of
the type as was in the present case is
purely non-statutory arising out of the
Government orders and the remedy open
to the person aggrieved by the action of
the authorities is under the Government
Order by filing an appeal. The appeal
filed
on
behalf
of
the
fair
price
holders/dealers/having been allowed/
dismissed, the remedy open to the writ
petitioners/dealers is not a writ petition
under Article 226 of the Constitution of
India, but ordinary civil remedy. So far
as the second category of the cases
wherein the dealership was cancelled/
suspended on the complaint made by the
complainants
and
on
appeal
the
Appellate Authority, according to the
relevant Government Order, has restored
the dealership without impleading these
complainants, as the authority was
affording
an
opportunity
to
the
complainants, as the authority was
affording
an
opportunity
to
the
complainants, is concerned. In view of
the
Government
Order,
referred
to
above, since appeal lies only against the
cancellation order, it was not necessary
to heard the complainants, as the
relevant Government Orders do not
prescribe that complainants should also
be heard, thus the authorities have not
committed any error in not hearing the
complainants.
Case Law Discussed:
C.M.W.P. No. 749 of 2003, decided on
2.5.2003 (All) (DB)
1991 (IT) ALR406: 1991 ALJ 498
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