Modi, J. - (1.) THE plaintiffs who are appellants before me filed a suit for ejectment and arrears of rent in respect of a house situated in Mohalla Nadi in the town of Pali. THE plaintiffs are Punches of the Kasara community and brought the suit in a representative capacity. Defendants Nos. 1 to 4 are the descendants of one Rehman who is alleged to have taken the suit house on lease under a rent-note dated Kartik Vadi 13, St. 1961 from certain Punches of the Kasara community, viz. , Ramvilas, Poonamchand, Nathulal and Khajulal, who according to the plaintiffs are dead. According to the rent-note, the rent settled was Rs, 5/- per year and it was also stipulated therein that the land-lord would not be free to get the house vacated before a period of five years from the date of the tenancy. THE plaintiffs' case is that Rehman paid various suras of money by way of rent up to St. 1979 but has not paid any rent since that date. Rehman died about the year St. 1997. Defendants denied the tenancy and also denied having paid any rent whatsoever and stated that the rent-note was a false and fictitious document. THEy, however, set up their own title to the house in question and claimed in the alternative that if it be held that the relationship of land-lord and tenant was proved, they be awarded a sum of Rs. 1033/- which they had spent by way of improvements to the house. THE defendants finally pleaded that the plaintiffs' suit was barred by limitation.
(2.) THE trial court decreed the plaintiffs' suit for ejectment and for a sum of Rs. 25'- as arrears of rent for a period of five years. It disallowed the defendants' claim for improvements as there was no satisfactory evidence to prove it. Defendants-respondents went in appeal from the trial court's decree to the court of Sub Judge, Sojat. THE lower appellate court set aside the judgment and decree of the court below and came to the conclusion that the relationship of land-lord and tenant between the parties had not been established as the execution of rent-note Ex. P-1 by the defendants' ancestor Rehman had not been satisfactorily proved. That court also held that the identity of the house referred to in Ex. P-1 had not been proved as being the house in suit. On the point of limitation, the lower court held that the suit was barred by limitation under Art. 139 of the Limitation Act as the tenancy had terminated in St. 1966. From the aforesaid decree, this second appeal has been filed before this Court. Learned counsel for the plaintiffs-appellants has strenuously urged before me that the finding of the lower appellate court on the question of tenancy should not be mated as final in this second appeal inasmuch as that court completely ignored the provisions of sec. 93 of the Evidence Act. His argument was that the rent-note Ex. P-1 in this case was executed more than 3d years ago, and that even if the oral evidence produced on behalf of his clients was not sufficient to discharge the burden of proof, that lay upon them, to prove the tenancy, the presumption under sec. 93 of the Evidence Act dispensed with such proof, and the lower appellate court was in error in not having relied on the presumption which should have been raised in their favour under that section. It may be pointed out at once that the plaintiffs did not seek to raise any presumption under sec. 90 of the Evidence Act in either of the lower courts. A definite issue as to the execution of the rent-note Ex. P-1 was raised and the burden of proof thereof was placed upon and accepted by the plaintiffs. This burden they have failed to discharge as held by the lower appellate court and that finding being a finding of fact, is binding upon me in second appeal. Besides, whether a presumption under sec. 93 of the Evidence Act should or should not have been raised, was a matter for the discretion of the courts below. It is quite clear upon the plain language of sec. 90 of the Evidence Act that it is not obligatory on a court to raise any presumption under the section in favour of a person who desires to prove a fact. Of course, if the plaintiffs had asked the court to make a presumption in their favour in accordance with the provisions of that section, it would have been necessary for the courts below to have dealt with that matter. See Surendra Nath vs. Sambhu Nath (1) (A. I. R. 1927 Calcutta 870. ). It is, however, quite clear from the judgments of the courts below as well as from the record itself that as a matter of fact, the plaintiffs did not rely on this presumption until they came to this Court, but they adduced evidence to prove the genuineness of the rent-note Ex. P-l as already stated above. In such circumstances, the appellants can have no just grievance if such presumption does not find any mention in the judgments of the courts below. Learned counsel for the appellants has, however, urged that no matter that the courts below did not consider this aspect of the case, this Court should give him the benefit of sec. 90 of the Evidence Act as it was an eminently fit case for such presumption being raised in the circumstances of the case. I have carefully considered this question and do not find myself in a position to accede to his request. In coming to this conclusion. I have carefully persued Ex. P-1 dated Kartik Vadi 13, St, 1961. This document is obviously executed by the Punches of the Kasara community viz. , Ramvilas, Poonamchand, Khajulal and Nathulal in favour of Rehman, father of defendant-respondent No. 1. At the end it bears the endorsement Vks Hkkm+k fpv~bh jks lsyk. kk rsyh jgeku th jk gkfk jks ij fyf[k;kas lgh NSA** Learned counsel for the appellants has stated before me that Ex. P-1 does not bear any thumb-mark of Teli Rehman and that it was simply cross-marked by him. It is significant that the rent-note in question does not give any particulars of the house which was being let out on rent. The document is an unregistered one. It also appears from the copy of an entry from the stamp-vendor's register, which was produced on behalf of the plaintiffs themselves in the trial court, that Rehman was a literate person, or at any rate, he knew how to sign his name. It is not a little mysterious that Rehman should have merely cross-marked the rent-note Ex. P-1 upon which the entire suit of the plaintiffs is based. It cannot be over-looked further that the plaintiffs waited to bring their present suit for a period of good twenty years after St. 1979, in which year Rehman had completely stopped payment of any rent to the Punches of the Kasara community. In view of the circumstances mentioned above, I am constrained to come to the conclusion that it will not be right and proper for me to raise any presumption as to the genuineness of Ex. P-1 under sec. 90 of the Evidence Act and I decline to do so accordingly. That being so, we are left with such evidence as has been placed on the record to prove the relationship of landlord and tenant between the parties. I have already referred to Ex. P-1 above to indicate sufficiently that it is not a document which is above suspicion, There is only one other document which has been produced on behalf of the plaintiffs and that is Ex. P-9 This is just a memorandum containing certain alleged entries as to payment of rent by Rehman to the Punches of the Kasara community. The lower court has refused to rely on this document because the entries are not contained in any book maintained regularly in the course of business. In fact, only one entry therein of Rs. 10/- dated St. 1976 Kartik Vadi 13 has been sought to be proved on behalf of the plaintiffs and even that entry cannot be said to be above the rage of suspicion, inasmuch as, whereas according to the entry itself the payment was made by the hand of Ramwilas, plaintiff Ramchandra would have us believe that the said payment was made by Rehman himself. No other effort whatever has been made to prove this or any other entry in Ex. P-2. Coming now to the oral evidence on the question of execution of Ex. P-1, it is not for me to scan it sitting in second appeal. I may point out, however, that the plaintiffs have produced only two witnesses viz. , P. W. 2 Jethmal and P. W. 3 Lumbaram to prove the execution of Ex, P-1 by Rehman. The evidence of P. W. Lumbaram who merely identifies the hand-writing of his father Lakharam who is said to be the scribe of Ex. P-1, is more or less formal and is not sufficient to prove the relationship of land-lord and tenant between the parties. As regards P. W. 2 Jethmal, the lower court has given excellent reasons for not believing him and I am not prepared to differ from its estimate as to the credibility of this witness. In view of the facts and circumstances mentioned above, I hold that the plaintiffs have not succeeded in establishing that the defendants are the tenants in respect of the suit house. . . . . . I need mention only two other points briefly. First, that, in, view of the conclusion at which I have arrived as regards the factum of tenancy, it is not: at all necessary to decide the question of limitation, The other point is that learned counsel for the appellants raised a question of jurisdiction that the first appellate court, that is Civil Judge, Sojat, was not competent to hear and decide the appeal which was filed before him by the defendants and therefore the judgment under appeal was a nullity. It is not necessary, however, to pursue this point because learned counsel abandoned this objection during the course of arguments and in my opinion quite rightly. The result is that I hereby dismiss this appeal with costs. . ;