Nisha Gupta, J. - (1.) THIS second appeal under Section 100 CPC has been filed against the judgment and decree dated 27.9.2012 passed by Additional District Judge, Dholpur in Civil Appeal No. 06/2011 confirming the judgment and decree dated 31.3.2008 passed by Civil Judge (Junior Division) Bari, in Civil Suit No. 221/1992 whereby the suit for eviction has been decreed in favour of the plaintiff - respondents.
(2.) THE short facts of the case are that a civil suit has been filed by the plaintiff respondents for eviction on the ground of denial of title of the respondents and other grounds have also been raised. The defendants have denied the contention of the plaint and their contention was that they have constructed the house and residing there from last 30 years. The court below has mainly decreed the suit on the strength of rent deed Ex.13 dated 13.10.66 for which the courts below have raised the presumption under Section 90 of the Evidence Act. The contention of the appellants is that one of the attesting witness and scribe of the deed was alive, hence presumption under Section 90 of the Evidence Act should not have been raised. The document is a lease hence it was compulsorily registrable. Presumption has been raised on 26.3.2008 and thereafter the suit has been decreed, hence he could not have opportunity for rebuttal. On certified copy of Ex.13, the presumption has been raised. It is an admitted fact that earlier suit 81/84 has been filed between the parties in which document Ex.13 has been produced and at that time, it was not 30 years old, hence presumption under Section 90 of the Evidence Act should not have been raised. No boundaries have been mentioned in the document, genuineness of the document is disputed as stamp has not been purchased by the appellants. There is no allegation that possession has been handed over through Ex.13, hence the courts below have erred in decreeing the suit whereas the contention of the respondents is that certified copy of Ex.13 has been submitted, thereafter original document has been called for and presumption has been raised only for the original document. At any stage, presumption could be raised and these are findings of fact concurrently answered by the courts below and no interference is needed and other contention of the respondents is that the appellants have pleaded two defence that property has been given to them by way of gift which fact has not been proved by the defendants and other contention was that they have raised construction whereas there is a clear evidence that the suit property has been constructed by the original land lord Mahi Prasad. The whole defence of the appellants is falsified. Ex.13 is not a bilateral document, hence it could not be termed as lease. There is ample evidence to show that construction has been raised by Mahi Prasad. Earlier also, the appellants have filed a suit for declaration and injunction which has been withdrawn. Again title of the respondents has been denied, hence the courts below have rightly decreed the suit and no interference is needed.
(3.) HEARD the learned counsel for the parties and perused the judgments and decree under appeal.;