' MALIK MUHAMMAD ASLAM KHAN, J.-This is an appeal by leave against the judgment and decree, passed by a Single Judge of the High Court on 29th November, 1975.
2. Briefly stated, the facts, from which this appeal arises, are that respondent Fazal Din instituted a declaratory suit on 20th April, 1968 in the Court of Sub-Judge Bagh, seeking a declaration to the effect that the suit land entered in field No, 244 min, measuring 4 kanals, situate in village Bhagsar, Tehsil Bagh, was in his adverse possession for more than 12 years in view of which he had become its owner through prescription. It was further alleged in the plaint that field No, 244 min comprised 12 kanals 9 marlas, whose owner was one Muhammad Akbar Khan, the ancestor of the appellants herein. In the year 2000 Bk. Muhammad Akbar tried to get back the possession of the land from the respondent which was resisted, resulting later on in a compromise between the parties by which Muhammad Akbar Khan, through an unregistered gift deed Exh. P. A. Dated 29th Jeth 1990 Bk., relinquished his rights over 4 kanals of the suit land in lieu of getting back the remaining 8 kahals and 9 marlas of land from the respondent. Respondent also claimed, in the alternative, compensation for a house constructed and an orchard raised by him on the suit land. As a counterblast, the appellants also instituted a cross suit on 1st May, 1969, against the respondent herein praying for possession of the suit land on the ground that the respondent was a tenant-at- will and had been praying Rs, 10 to Muhammad Akbar during his lifetime, and Rs, 8 after his death, as `malkana' to the owners but had stopped it after the year 1967 necessitating the suit for possession. Both the suits were consolidated and the evidence was recorded in the suit entitled Fazal Din v. Muhammad Sarwar and others. It may be stated here that no mention of Exh. P. A. Or any alleged gift by Muhammad Akbar, was made by Fazal Din in his plaint. However, it was on 9th April, 1969, when he appeared as a witness that he tried to produce in Court, Exh. P. A., the admittance of which was objected to and so the document returned by the Court. It was however, exhibited on 23rd May, 1970. These dates are relevant as Exh. P. A. Has been the main contentious document between the parties especially with reference to the raising of presumption about it under section 90 of the Evidence Act. The trial Court dismissed the suit of Fazal Din and decreed that of Muhammad Sarwar and others on 31st July, 1970 as it came to the conclusion that Fazal Din had failed to establish his adverse possession and that the entries in the revenue record had been manipulated, altered and forged rendering them unworthy of credit. The Court also refused to raise a presumption under section 90, Evidence Act in favour of the document for the following reasons :-
(i) That although Exh. P. A. Was said to have been executed by Muhammad Akbar Khan in the year 1990 Bk. Yet upto 2003 Bk. It finds no entry in any revenue record which should have been the case if Fazal Din had obtained the suit land through this document
(ii) That no witness had been produced by Fazal Din in support of Exh. P. A. Although the signature of Muhammad Akbar on Exh. P. A. Was challenged by Muhammad Sarwar and others proved it to be not that of Muhammad Akbar as it did not tally with his undisputed signatures on documents Exhs. D. A. To D. C.
3. Against the judgment and decree of the trial Court, Fazal Din preferred an appeal before the District Judge, who too concurred with the above findings of the trial Court, but allowed Fazal Din, Rs, 1,000 as cost of improvements made by him on the suit land. The first appellate Court also referred to the stand of Fazal Din, taken by him in the written statement in the cross suit, wherein he had averred that Muhammad Akbar had transferred the suit, land in his favour as in Besakh 1995 Bk., vide document Exh. P. A. Dated 29th Jeth 1990 Bk. This assertion was held as contradictory and unusual, because according to the learned Judge, if the document had been executed in 1990 Bk., no cogent reason had been given as to why it was not acted upon till 1995 Bk. From this fact according to the first appellate Court, it could be reasonably inferred that the document was fabricated. Both the Courts also came to the conclusion that Fazal Din was a tenant-at-will paying `malkana' to the owners and his possession, therefore, could not be termed as adverse, of whatever duration such a possession might have been.
' Not being satisfied with the decisions of the two Courts, Fazal Din preferred a second appeal in the High Court, where the learned Single Judge, vide impugned judgment and decree dated 29th November, 1975, accepted the appeal thereby reversing the judgments of both the Courts below and decreeing the suit of Fazal Din. In the words of the learned Single Judge 'the most important piece of evidence in the case is the document Exh. P. A. Which should be a decisive factor in this case'. The learned Judge also observed that 'the Courts below had not placed reliance upon this document as in their view it had not been proved. It was forgotten, and seems not to have been brought to their notice that this document being over thirty years old, stood protected by section 90 of the Evidence Act.' The variations of the signatures on Exhs. P. A. And D A to D C, in the opinion of the learned Single Judge did not displace the presumption that arose under section 90, Evidence Act in favour of the document being genuine.
4. The learned counsel for the appellant has forcefully contended that the High Court has erred in the application and interpretation of section 90, Evidence Act in holding the contents of the document as genuine or its being acted upon as no such presumption can be drawn under section 90 of the Evidence Act. His point is that the presumption, under section 90 of the Evidence Act, is available only to the execution of the document and not to its contents which have to be proved like any other fact. He has also contended that the presumption under this section is not a conclusive but a rebuttable presumption and that it had been squarely rebutted by Muhammad Sarwar and others in the instant case by proving that the alleged signatures of Muhammad Akbar Khan on Exh. P A were forged.
5. In view of this contention, we would like to examine the scope, extent and the implications of section 90 of the Evidence Act vis-a-vis ancient documents before we consider its application to the facts of the case before us :-
(a) The document, to attract the application of section 90, Evidence Act must purport, or be proved, to be thirty years old.
(b) The terminus quo for the computation of the period of thirty years under section 90 of the Evidence Act, starts from the date, not when the document is presented, but from the date when its genuineness is challenged and it becomes a subject of proof. Thus a document may not be thirty years old when it is filed in the Court but if it becomes thirty years old, when its genuineness is challenged, or even at the time of the arguments if a document is challenged at that stage, the protection under section 90 of the Evidence Act becomes available. We find support for this view from AIR 1924 Lah. 145 and AIR 1925 Mad.
184. In AIR 1924 Lah. Question arose about the computation of the period of two documents, upon which the respondent relied. It was held that : "The period is to be reckoned, not from the date on which the document is put into Court, but from the date on which, after the document has been tendered in evidence, its genuine ness becomes the subject of proof."
' In AIR 1925 Mad. It w opined:- "The period of 30 years referred to in S. 90 in connection with the presumption in favour of ancient document is to be computed not from the date upon which the document is filed in Court but from the date on which its genuineness became the subject of proof."
' In view of this legal position, we repel the contention of the learned counsel for the appellants that for the purpose of section 90, Evidence Act, the period of thirty years is to be computed from the date of the filing of the document and not from its genuineness becoming the subject of contention. Otherwise too, as already stated by us, this document was presented on 8th April, 1969 and returned on 1st May, 1969 and exhibited on 23rd May, 1970 when it became the subject of contention when the period of thirty years had been completed. Thus 'from this angle too, the argument of the learned counsel for the appellants is untenable.
(c) The document must have been produced from the proper custody which is a condition precedent for application of section 90, Evidence Act. As to what is the proper custody, it would depend upon the circumstances of each case. Broadly speaking, it may be stated that the person producing a document must satisfy the Court as to how he came into custody of the document and that it could reasonably be expected to be in his custody.
(d) The presumption to be raised under section 90, Evidence Act, is discretionary and not compulsory one. The Court has the discretion under the circumstances of each case to raise or not to raise the presumption as is clear from the very wordings of the section 90, Evidence Act. For this legal proposition, we may refer to B. Ram Naresh Singh v Chirkut and another (1) ; Mst. Gomti and others v. Meghraj Singh and others (2) and Raja Jaleshwari Pratab Narain Singh v. Pateshwari Baksh Singh and others (3). So even if a document is thirty years old the Court has to look into its surrounding circumstances especially when its genuineness is challenged for exercising its discretion in raising or not raising the presumption. There is no warranty for the view that the mere fact of a document being thirty years old, it necessarily requires the Court to raise the presumption mentioned in section 90, Evidence Act in favour of the document.
(e) The judicial consensus is in favour of the proposition that where the lower Court has exercised its discretion in favour or against the document, under section 90 of the Evidence Act, such a discretion is not to be interfered lightly by the appellate Courts unless it is shown that the discretion so exercised was either not well founded or capricious or arbitrary. Because primarily it is the trial Court which has to decide, in the circumstances of each case, to exercise or not to exercise the discretion available under section 90 of the Evidence Act. As an authority:
(1) AIR 1932 Oudh 227
(2) AIR 1933 All. 443
(3) AIR 1938 All. 345 ' may refer to Bhairo Singh, and others v. Lal Ambika Baksh Singh and others (1). In this case, a document (patta) was produced, which was more than thirty years old but the trial Court refused to make a presumption in favour of the genuineness of this document mainly on the ground that though it purported to have been executed in 1254, the seal of it bore the year 1259. In appeal, relying on 8 0 L J 131, it was held that 'the raising of presumption under S. 90 as to the genuineness of a document is a matter which is eminently within the discretion of the trial Court. To the same effect is AIR 1932 Oudh 227 showing that when the discretion is properly exercised by the trial Court, the higher Courts are slow to interfere in the discretion.
(f) Great care and caution should be exercised in applying the presumption under section 90, Evidence Act. Because this is based on the rule of expediency for the reason of the inherent difficulty in proving an ancient documents as generally most of its characters are either dead or not traceable. In view of this impediment, the law, unlike its normal practices, dispenses with the proof of the execution or attestation of such a document, But while dispensing with the said proof, it has not over-looked the danger lurking from the other side-the possibility of an easy fabrication of an ancient document when its main characters are no more in this world or beyond reach making it equally difficult for the other party to refute it. It is with a view to providing effective checks and balances against such inherent dangers that the Legislature in its supreme wisdom has not made the raising of presumption under this section imperative and rather left it to the discretion of the Court to be exercised with utmost circumspection especially in case of an unregistered document.
For this delicate duty the Court can be assisted by scrutiny of internal as well as external circumstances surrounding the alleged ancient document. In case of any doubt arising about the genuineness of a document, the Court will be well within its discretion to refuse to raise the presumption even if it has come from a proper custody. We would, here, like to refer to the comments contained in Law of Evidence in India by B. A. Malik and S. S. Sastry (10th Edition), page 933 : "But this rule of presumption which, it has been said, should even in England be carefully exercised, must be applied with exceeding caution in this country where forgery and fraud cannot be said to be of rare occurrence, and where, therefore, this reason for the rule has not the same weight as it is sup- posed to have in England. Here, therefore, less credit should be given to ancient documents which are unsupported by any evidence that might free them from the suspicion of being fabricated, since even in England this evidence when unsupported is of very little weight."
' The same view is expressed in Principles and Digest of the Law of Evidence by M. Munir (former Chief Justice Supreme Court of Pakistan) Pakistan edition by Sh. Abdul Haleem at pages 837 and 838.
(b) The presumption available under section 90, Evidence Act is rebuttable and not conclusive. So even if an ancient document may be entitled to initial presumption under section 90 of the Evidence Act, it is open to the other party to challenge it to dispel the presumption by (1) AIR 1942 Oudh 374 showing, for instance, that the signatures on the document have been forged (as has been done in the case before us).
(h) Presumption under section 90, Evidence Act is not available even if the document is ancient where it is found that a serious doubt I cast about its authenticity or that it is a fabricated one. Such a point came under consideration in Baldeo Ali v. Bharos Kunbi and others (1) where it was held that when a document is suspicious on the face of it, the presumption of genuineness under section 90, Evidence Act does not arise.
(t) Nature and extent of presumption under section 90, Evidence Act, may be stated as it needs to be made clear that the presumptions that can be raised under section 90, Evidence Act that are not all pervading but are limited to the following "(I) That the signature and every other part of the document which purports to be in the handwriting of any particular person is in that person's signature or handwriting, as the case may be ;
(ii) That the document was executed by the person by whom it purports to have been executed ; and
(iii) That the document was attested by the person by whom it purports to have been attested."
' For this we may refer to Principles and Digest of the Law of Evidence by M. Munk, page E41, ' But the presumption does not extend to the correctness of the contents of the documents or that it was actually acted upon. These facts like all other facts are to be proved by evidence especially when the genuineness of the ancient document is challenged and evidence led in rebuttal thereof.
(j) The presumption that arises under this section, is a presumption of law and can be raised at any stage, But so far as a finding about the ancient document being genuine or having been acted upon, is concerned, it is a question of fact and where there is concurrent finding of such a E fact, the higher Courts will be reluctant to interfere in such concurrent finding of fact unless there is a gross miscarriage of justice or the finding is patently perverse or fanciful. Because primarily the discretion under this section is to be exercised by the trial Court, and if it is well founded it is generally not interfered with especially in second appeal.
5. Applying these principles to the document before us, we find that both the trial Court and the first appellate Court have applied their discretion under section 90, Evidence Act, properly and judiciously. We also find much force in the argument of the learned counsel for the appellants that the learned Single Judge of the High Court had fallen in error by opining "the learned Courts below have not placed reliance upon this document as in their view it had not been proved. It was forgotten and (1) AIR 1926 All. 537 seems not to have been brought to their notice that this document being over thirty years old, stood protected by section 90 of the Evidence Act." The following observations of the trial Court and the first appellate Court on the other hand leave no doubt that section 90 of the Evidence Act was not only brought to the notice of both Courts below but they were also fully cognizant of the import and implications of the provisions of section 90, Evidence Act and have applied them on sound and solid grounds in refusing to raise the discretionary presumption in favour of the impugned document :- {{URDU TEXT}} (Remarks of the trial Court)
' Similar consideration has been shown by the first appellate Court as appears from the following remarks :- `The respondent's counsel in reply urged that section 90, Evidence Act gives option to the Court to raise the presumption only when it is proved that the document was executed 30 years ago, and unless this is proved no presumption can be raised. He urged that Exh. P. A. Is a false document.
Had it been a genuine document, Fazal Din plaintiff must have filed it with his plaint or must have produced it on the first hearing but he produced it when he appeared as witness. The objection was taken by the other party and document was returned to the plaintiff. Long after this, Muhammad Sarwar and others filed cross suit and in the suit when defendant filed written statement, he produced Exh. P. A. He also urged that had Exh. P A been a genuine document Fazal Din must have produced this before revenue authorities in Dogra Regime. He further urged that Fazal Din defendant averred in his written statement that Muhammad Akbar transferred the suit land in his favour in Bisakh 1995 vide document dated 29 Jeth 1990 Bk. This assertion also contradicts him and leads to the inference that Exh. P. A. Is fabricated and false. I have given thought to the arguments of the learned counsel of the parties and perused the file carefully. I find great force in the arguments of the learned counsel for respondent because had this document been executed in 1990 Bk, why possession was not given at that time and was given in 1995 Bk.
Moreover had this document been executed in 1995 Bk. Fazal Din must have produced it before revenue authorities but he kept mum for such a long time leads to the inference that it has been fabricated. Moreover, section 90 of Evidence Act gives discretion to the Court to apply the presumption but does not make it obligatory. It has been held in the commentary under section 90, Evidence Act by Munir first volume 1974 Edition, page 839 under the note :-- "Cases where the Court may refuse to apply the presumption................. Where a will was produced for probate long after it was executed and there was no satisfactory explanation of the delay, the Court refused to raise the presumption under this section." This reference applies to the facts of this case, no explanation has been given why Fazal Din plaintiff kept mum about this document for more than 30 years. It has also been held on page 493, Evidence Act, third para. That appellate Courts are slow in interfering with the discretion of the trial Court in raising the presumption or not raising the presumption. In the light of above reference, 1 agree with the arguments advanced by the learned counsel for respondent that the trial Court has rightly refused to raise the presumption under section 90, Evidence Act in favour of Fazal Din plaintiff. The plaintiff did not produce the scribe of Exh. P. A. Nor did he prove this document by producing any person who could have identified the signature of the executant or the scribe or marginal witnesses of Exh. P. A. In this way, the trial Court has rightly ignored Exh. P. A. And did not rely on it."
' We have no doubt from the above-quoted observations of the trial Court and the first appellate Court, that they had properly applied their mind to the provisions of section 90, Evidence Act, and refused to exercise their discretion for raising the presumption on very cogent and solid grounds.
Therefore, with all the. Respect we have for the views of the learned Chief Justice of the High Court, the discretion used by the trial Court and the first appellate Court could not be interfered with in such a light manner.
' It is more so when we find that the document was unregistered and the appellants had convincingly rebutted the presumption that could be raised by producing document Exhs. D. A. To D. C. Which go to show that the signatures of Muhammad Akbar on Exh. P. A. Were not genuine.
6. We also find great force in the contention of the learned counsel for the appellants that when there was concurrent finding of fact by the trial Court and the first appellate Court about the impugned document being not genuine and not even ever having been acted upon, this concurrent finding of fact arrived at by two Courts on sound basis, could not be disturbed in second appeal without coming to the conclusion that the finding was perverse or capricious. Since the High Court has not given any such finding about this concurrent finding of fact, in our view it could not be interfered in second appeal.
' As already discussed by us in para. 4(b) above, we repel the contention of the learned counsel for the appellants that to attract the protective umbrella of section 90, Evidence Act, the document at the time of fling must be thirty years or above old. The law on the point is as we have enunciated above, that the determining point for the age of the document is not the date of its presentation or filing but the date when it becomes a subject of contention.
' The net result is that for reasons stated above, we accept the appeal by upsetting the judgment and decree passed by the High Court and restoring that passed by the first appellate Court.