Dav, J. - (1.) THIS is a first appeal by the plaintiff, Poonamchand, in a suit under Order XXI Rule 63 of the Civil Procedure Code.
(2.) THE facts giving rise to it are that defendant No. 3 Sunderlal and No. 4 Daudas had a decree against defendant No. 5 Gulab Das, and in execution of that decree, they got an attachment of a house situated in Bhootron-ka-Vas at Pokaran. THE description of that property is given in para No. 2 of the plaint and need not be repeated here. THE plaintiff presented an objection petition under Order XXI, Rule 58 of the Civil Procedure Code. THE decree-holder contested that application on the ground that the house originally belonged to defendant No. 1 Motilal, that he and his mother Mst. Dhapi defendant No. 2 had sold it to Sangidas Beharial, who were father and grandfather respectively of the judgment-debtor, Gulabdas, defendant No. 5. THE plaintiff's objection-petition was dismissed. THEreafter the attached property was put to auction and pruchased by defandant No. 6 Hemraj. The plaintiff and edfendants Nos. 1 and 2 related to each other. They come from a common stock one in order to under-stand the case it would be proper to give their pedigree-table which is not in dispute. It is as follows: - Hemraj Akheram Bulidan Rampratap Jeetmal Bholaram Poonamchand (P.) Premsukh Madangopal Mt. Dhapi (widow) (D. 2) Srikishen Motilal (D. 1) The plaintiff's case in the trial court was that although the disputed properly was once the joint-family property of Akheram, Bulidan and Rampratap, it came to his share on a partition in the family and therefore he was its sole owner and that it was also in his exclusive possession. It was averred that defendant No. 1 Motilal had no right over the property and that he or his mother, defendant No. 2, had no authority to dispose it of. It was further alleged that the sale of the property by defendants Nos. 1 and 2 in favour of the ancestors of defendant No. 5 was fictitious, or at any rate void against him. It was therefore prayed that a declaratory decree be passed to the effect that the plaintiff is the rightful owner of the property and that it is not liable to attachment and sale in execution of the decree of defendants Nos. 3 and 4. Four defendants, namely Nos. 1, 2, 4 and 5 did not enter appearance in the trial court and, therefore the suit proceeded against them ex-parte. Defendants Nos. 3 and 6 contested the suit. Their defence was that the partition between Jeetmal, Bulidan and Rampartap had taken place in Svt. 1924 and the house in dispute had came to Ramparatap's share. Defendant No. 1 inherited it from Ramparatap and therefore, he was its rightful owner. If was averred that defendants Nos. 1 and 2 had sold this house to Beharilal Sangidas, ancestors of defendant No. 5 and, therefore, defendant No. 3 had a right to get the said house attached and sold in execution of his decree against defendant No. 5. It may be remarked here that the said plaint and the written-statement were filed in the court of the Judicial Officer. Thikana Pokaran. The plaintiff had valued the house in dispute at 700/ -. The defendant raised an objection that the suit was undervalued. The Judicial Officer, Thikana Pokaran, came to the conclusion that the house was valued at Rs. 25c0/- and since it was beyond his jurisdiction to hear the suit, it was transferred to the court of the District Judge, Jodhpur The learned District Judge then framed the following two issues : - 1 Whether the alleged house is in the ownership and possession of the plaintiff and is not liable to attachment and sale in execution of the decree in case No. 3 of 1937 38 2. What relief the plaintiff is entitled to' After recording the evidence of both parties, the learned Judge found that there was a partition in the plaintiff's family in Svt. 1924, that the house had gone to the share of Rampratap, that it was sold by defendants Nos. 1 and 2 to the ancestors of defendant No. 5 and, therefore, it was liable to attachment and sale in execution of the decree of defendants Nos. 3 and 4 against him. The court also held that the plaintiff was unable to prove his title to the property and, therefore, the suit was dismissed. The plaintiff filed an appeal which was heard by a Bench of this Court. It was found by the learned Judges that the house was joint family property that the plaintiff had an undefined share therein and that he was in possession of a part of the house. The appeal was therefore allowed and it was declared that the whole house could not be attached in execution of the decree. Against this decision, a review application was filed by defendant No. 4. The learned Judges, who heard the review application, found that there were two errors apparent on the face of the record and. therefore, the application was allowed and the appeal was fixed for re-hearing. This is why this appeal has came before us again for decision. Now a perusal of the pleadings and the statements of the contesting parties shows that it is common ground between them that the house in dispute was at one time the joint-family property of the ancestors of the plaintiff and defendant No. 1 Motilal. It is also undisputed that partition of the ancestral property had taken place long long ago and the house is on longer joint-family property. According to the plaintiff, it came to his share in Svt. 1957 when the first defendant's grandfather Rampratap gave it away to him. On the other hand, the defendants' contention is that there was partition is Svt. 1924 between the grandfathers of the plaintiff and defendant No. 1, namely Bulidan Rampartap, and the house came to the share of Rampratap, grandfather of defendant No, 1. The first question which, therefore, confronts the Court for determination is whether the house had gone to the share of the plaintiff or to that of Rampratap. On this point, the plaintiff has not produced any document evidence. He has remained content by examining himself. The defendant on the other hand, has produced two documents Ex. D. 1 and D. 2 which are said to be partition deeds. We have gone through the plaintiff's statement and find that it is impossible to place any reliance on it. He was examined on 13th of February, 1948. On that day it was stated by him that it was in Svt. year 1957 that Rampratap had given this house to him as his share. At that time, he gave his age as 45 years or 55 years. The first figure was originally "4" and it has been altered so as to look like "5". It is difficult to say now who has made this alteration. If the appellant was 45 years of age on the date of his statement, he was not born in the Svt. year 1957. But even if it be taken that he was 55 on the date of his statement, he would be only seven years of age at the time of the alleged partition. It is difficult to believe that the plaintiff would remember a partition which is said to have taken place at the age of seven years. The plaintiff has not produced any document evidencing the partition in Svt. year 1957. If Rampratap was so generous to him, then he would have also given some document in writing in his favour. Then, the plaintiff has not mentioned who was his guardian at that time. It cannot be believed that Rampratap had delivered the property to the plaintiff at the age of seven years without a guardian. The mere statement of the plaintiff, under the circumstances, is altogether unbelievable and the story put up by him appears to be a myth. On the other hand, Ex. D. 1 produced by the respondents is a partition deed between Jeetmal, Bulidan and Rampratap, ancestors of the plaintiff and defendant No. 1. Similarly, Ex. D. 2 is counterpart of Ex. D. 1 and it was executed by Rampratap and Bulidan, Both these documents make it quite clear that there was a partition in the Svt. year 1924 and the house in dispute came to the share of Rampratap, grandfather of defendant No. 1. The trial court has presumed these documents to be genuine under sec. 90 of the Indian Evidence Act s;nce they are much more than thirty years old. Ex. D. 1 shows that it bears an endorsement of the court of Thikana Pokaran dated 3rd of February, 1906, since it appears to have been produced in that court in some suit This document bears another endorsement dated 28th of July. 1928, of the District Court No. 1 Raj Marwar. This clearly shows that the document was in existence as early as the year 1906 and there is no doubt about the fact that it is more than 30 years old. Learned advocate for the appellant has tried to urge that even though this document is more than 30 years old, it should not have been presumed to be genuine under sec. 90 because it was not produced from proper custody. This argument had found favour with appeal on 31st of July, 1950, We have given due consideration to this matter and we think that this argument is not correct. The explanation to sec. 90 of the Evidence Act which deals with proper custody, runs as follows : - "explanation : - Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstance of the particular case are such as to render such as origin probable. "
(3.) LEARNED counsel for appellant has urged that if these documents were produced by defendants No. 1 and 2, it could by said that they were in proper custody; but since they have been produced by the decree-holder defendant No. 3. his custody cannot be said to be proper. This argument is not tenable because defendant No. 3 has come into the witness-box and stated on oath that he had got these documents from Sangi-Das, father of defendant No. 5. The witness has stated that the present house was once attached in execution of a decree of one Kishniram. At that time, Sangi Das had filed an objection petition. The witness had helped Sangi Das in engaging a Vakil and at that time, he had got these documents from him, and since then they were in his possession. This explanation given by the witness is not unnatural or unbelievable. Sangi Das had purchased the house from defendants Nos. 1 and 2 and naturally these documents should come in his possession from defendants 1 and 1. If the witness was helping Sangidas in the previous case, there was nothing extraordinary if he was entrusted with these documents. The second part of the explanation set out above shows that custody is not improper origin. In the present case, defendant No. 3 has proved by his own statement on oath how he had come in possession of these documents. According to this statement, the origin of his possession is quite legitimate. There is no evidence to the contrary to show that his possession had an illegitimate origin. The legitimacy of the origin of the plaintiff's possession also finds support from illustration (c) to sec. 90 which runs as follows : - " (c) A. a connection of B, produced debts relating to lands in B's possession which were deposited with him by B for safe custody. The custody is proper. " In the present case also, defendant No. 3 has stated that these documents were given to him by Sangidas and, therefore, his custody cannot be said to be improper, The trial court, therefore, did not commit any error in raising a presumption about these documents under sec. 90 of the Indian Evidence Act. As shown above, these documents were twice produced in the courts, in the years 1906 and 1928. The plaintiff has not given any evidence to show that any doubt was cast on them ever before. Under the circumstances, the trial court rightly held that partition between the ancestors of the plaintiff and defendant No. 1 had taken place as early as Svt. 1924 and the house in dispute had gone to the share of the first defendant's grandfather. Learned counsel for the appellant has next urged that his client has produced very reliable evidence to show that he was in possession of the property from Svt. 1982 and, therefore, the trial court ought to have decreed his suit only on the basis of his possession. According to learned counsel, it is not necessary for plaintiff to prove his title in a case under Order XXI, Rule 63. In support of his argument,he has referred to the case of Kalachitti Bhimavva vs. Gaurikara Nagappa (l) and drawn our pointed attention to the following observation: - "there is one distinction between what has to be proved in a suit under O. 21, R. 63 and that in a suit under O. 21, R. 103. Civil Procedure Code. So far as the class of suits contemplated by the latter provision is concerned, the Code lays down affirmatively that the plaintiff should prove his title. So far as suits under 0 21, R. 63 are concerned all that the Code requires is that the plaintiff should prove the right to possession. " We have given due consideration to this argument and we find it difficult to agree with this view. Order XXI, Rule 63 runs as follows: - "63. Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive. " It is clear from the wordings of this rule that the plaintiff, who files a suit, has got to establish "the right which he claims to the property in dispute. " When any claim is preferred or an objection is made under 0. 21, R. 58 C. P. C. to the attachment of any property, then, according to Rule 59, the claimant or objector is required to adduce evidence to show that at the date of the attachment, he had some interest in, or was possessed of, the property attached. Then Rule 61 lays down that if the court,which makes the investigation, is satisfied that the property at the time of attachment was in the possession of the judgment-debtor as his own property and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant paying rent to him, the court should disallow the claim. It is clear from Rule 61 that the court should disallow the petition of the claimant or the objector when it satisfied that at the time of attachment, the property was in the possession of the judgment-debtor as his own property and not on account of any other person, or that if it is in the possession of some other person, his possession is on behalf of the judgment-debtor. Under the circumstances, when the claimant files a suit under 0. 21, R. 63, he has got to establish either his title to the property; or if he relies only on his possession, that he has to establish that his possession is in his own right. In such a suit, if the other party is able to the establish the judgment-debtor's title to the property, then mere possession of the plaintiff would not enable him to achieve any success in his suit. Other XXI, Rule 63 does not contemplate that the plaintiff's suit should be decreed merely on the basis of possession even though the title in the property is proved in the judgment-debtor. In other words, if it is proved that the title of the property vests in the judgment-debtor,then the plaintiff cannot be successful merely on the ground of possession unless he is further able to establish that his possession was adverse to the judgment-debtor and that he has perfected his title on the basis of adverse possession. ;