Saeeda and Others vs Nizam Uddin

Sanjay Misra, J.—Admit.

Shri Nisaruddin has put in appearance on behalf of the sole Plaintiff Respondent.

The substantial question of law that arises for decision in this second appeal is:

(i) Whether the lower appellate court could decree the suit of the Plaintiff Respondent by setting aside the judgment of the trial court by raising a presumption with respect to documents 63 Ga ( dated 03.04.1959 order of custodian), 17 Ka sale deed of 1962, 18 Ka sale deed of 1959 and 19 Ka will deed of 1961, when it formed the basis of the claim made by the Plaintiff and defense made by the Defendant Appellant in view of Section 90 A of the Evidence Act in its application to the State of U.P.?

(ii) Whether the presumption u/s 90A of the Evidence Act has been wrongly drawn with respect to the documents which are more than 20 years old inasmuch as such documents were the basis of the suit or defense and are relied upon by the parties ?

Shri M.A. Qadeer, learned Senior counsel assisted by Shri Shamim Ahmad, learned Counsel for the Appellant has submitted that the Plaintiff Respondent had filed suit No. 405 of 2000 on the ground that after the property was declared as evacive property and sold three times the Plaintiff Respondent who had served Smt. Mahmooda was gifted the property in question and the Defendant Appellant was relation and only a licensee to live in one room. He states that the Defendant Appellant has set up the case that the Defendant s grant father had instituted an earlier suit against the ancesstors of the Plaintiff and by virute of exparte decree of the year 1982, they had obtained possession of the disputed portion. He states that the Defendants claim had been accepted by the trial court and the suit of the Plaintiff has been rejected, however, the first Appellant court has committed an error by presuming the genuinety of the documents which were more than 20 years old but which formed basis of claim of the parties in the suit and therefore u/s 90A of the Evidence Act, such presumption was clearly illegally drawn.

In view of the aforesaid circumstances untill further orders of this Court the effect and operation of the impugned appellate judgment dated 22.07.2010 passed in Civil Appeal No. 11 of 2005 Nizamuddin v. Anis and others passed by the Additional District Judge, Court No. 17, Meerut shall remain stayed.

6.Learned Counsel for the Plaintiff Respondent prays for and is granted three weeks time to file counter affidavit. Two weeks time is allowed thereafter for filing rejoinder affidavit.

List the matter immediately thereafter.