JUDGMENT 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. Malda, 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 1st 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 pal 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 Nazarene 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.
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 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 was not in exclusive possession of the land in dispute.
4. 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 validity 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.
5. 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 ?
6. In order to evaluate the aforesaid question of law, it is necessary to consider the. provisions of Sections 90 and 90A 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 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 duty 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".
7. A Full Bench of this Court in Ram Jas v. Surendra Nath, AIR 1980 All 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 79to90-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 90A and sub-section (2) thereof is applicable and no presumption can be drawn under Sec. 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 90A is not available.
The presumptions available under Sections 90 and 90A are also not similar. Section 90(2) permits the raising of the presumption in respect of the signature, handwriting, execution and attestation, while Section 90 permits a presumption only in respect of execution. Section 90 deals with documents which arc more than 20 years old while Section 90A places no such restriction and includes also documents from judicial record, Neithier 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.
For the reasons given above, it is not possible to hold that sub-section (2) of Section 90A 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."
8. In AIR 1981 All 274, Smt. Vidya Devi 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 90A 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,"
9. From the aforesaid it is clear that Section 90A(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 90A(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 90A 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 90A(2) of the Act.
10. 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. 1The provisions of Section 90 has to be read along with Section 65 of the Act. Mere production of a certified copy of the said 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.
11. The Supreme Court in Lakhi Baruah v. Padma Kant Kalita (1996) 8 SCC 357 : (AIR 1996 SC 1253) 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."
12. 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.
13. 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 of 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.
14. 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.
15. 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 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.
16. In view of the aforesaid the second appeal is dismissed. However, in the circumstances, there shall be no order as to costs.