S.N.MODI, J. - (1.) THIS second appeal by the plaintiffs arises out of a suit for possesetion.
(2.) THE plaintiffs filed a suit alleging that a plot of land belonging to Veerchand Lakhaji, existed towards the south of their house situate at village Nadol. The plaintiffs obtained patta of their house on 15 -2 -50 from the erstwhile thikan Ganarao as village Nadol was one of the Jagir village of thikana Genarao in the Former State of Marwar. The plaintiffs further alleged that the defendants purchased the plot belonging to Veerchand Lakhiji and thereafter illegally encroached upon the land adjacent to the plaintiff's land measuring 6 1/2' x 12 1/4' marked EFGH in the site -plan Ex. P.2. The plaintiffs therefore prayed for decree for possession of the land marked EFGH in the site -plan Ex. P. 2 The defendants admitted having purchased the plot of land from the successor of Veerchand Likhaji, namely, Himmatmal on 31 -1 -50 for Rs. 651/ -. They further pleaded that the land marked as EFGH in EX. P.2 was part and parcel of the land purchased by them, from Himmat Mal. Some more pleas were ralsed by the detendants which would be clear from the following issues framed by the trial court: ...[VERNACULAR TEXT OMITTED]... The trial court on consideration of the evideace led by the parties decided J issues Nos. 1 to 4 against the plaintiffs and issues Nos. 5 and 6 in favour of the plaintiffs. In the result, the trial court dismissed the suit. On appeal by the plaintiffs, the learned Senior Civil Judge, Sirohi. affirmed the finding of issues Nos. 1, 2, 3 and 4 and dismissed the appeal. Hence this second appeal. 2. I have heard learned counsel for both the parties and gone through the record of the case, The man contention on behalf of the plaintiff appellant is that both the courts below committed gross error in holding the defendants to be the owner of the land in dispute on the basis of the patta Ex. D/2. It may be stated at the outset that no other document of title was produced by the defendants except the patta Ex. D/2 showing dimensions of the land. The patta Ex. D/2 is dated Jeth Badi 3, Smt. 1914 Admittedly, it is a document which is over 30 years old and has been produced from the proper custody provided it refers to the land purchased by the defendants from Himmatmal. Both 'he courts below have presumed the genuineness of the document Ex. D/2 under Section 90 of the Evidence Act. It is urged on behalf of the plaintiff appellants that the document Ex. D/2 being an anonymous document Section 90 is wholly inapplicable and no presumption of genulneness arises under that section In my opinion, this contention is well -founded A bare perusal of the document Ex. D/2 shows that it is unsigned and unattested document. It is also not known in whose handwriting its contents are written Under Section 90 of the Evidence Act, a 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 document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested Ex. D/2 being an unsigned document i.e. undoubtedly anonymous document and no presumption of its genuineness can be raised under Section 90 of the Evidence Act The learned counsel for the defendants invited my attention to the following words appearing at the end of the document Ex. D/2 From the above words, the learned counsel persuaded me to infer that the document was in the hand writing of Shah Sheo Karanji Lodha. In my opinion, no such inference can be drawn in the present case It is highly improbable for a scribe to use 'ji' for himself at the end of his name. Since the words used are Sheokaranji Lodha, the scribe of this document cannot be Shah Sheokaran. The learned counsel for the respondents has next drawn my attention to the seal affixed on the patta Ex. D/2. It is argued that this seal was of thikana Gaoarao and it can be regarded as signature of the then jagirdar who issued the patta. I find no substance in the above contention. Under the General Glauses Act' the word 'sign' includes mark with reference to a person who is unable to write his name. Section 90 of the Evidence Act makes no provision for any presumption in regard to seals nor can a seal be regarded as a signature under the definition contained in the General Clauses Act. There is also no evidence to show that the then Jagirdar of Ganaro who is said to have issued the patta Ex. D/2 was unable to write his name. The existence of the sea! on the patta Ex. D/2 therefore cannot be regarded as signature of the executant. I am supported in my view by a decision of this Court in 1962 Rajasthan Law Weekly 478.
(3.) THE learned counsel for the respondents has next urged that the discretion exercised by the trial Court and the first appellate court in presuming the genuineness of the paeta Ex. D/2 under Section 90 of the Evidence Act should not be interfered with in this second appeal. It is true that ordinarily the High Court in Second appeal would be slow to interfere with the discretion exercised by the lower courts in the matter of presumption under Section 90 of the Evidence Act, but the discretion allowed by this section is a judicial discretion which has to be exercised on sound legal. principles Since, in the Present case the discretion has been exercised perversely without due consideration of the facts and circumstances of the case, the High Court has in my opinion, the right to interfere with the exercise of such discretion in second appeal. Instances are not lacking when in suitable cases the High Court in second appeal has so interfered with the exercise of discretion raising presumption under Section 90 of the Evidence Act by the courts below.;