JHA, CJ. - (1.) THIS appeal has come up before the Division Bench on reference by the learned Single Judge. The reference runs as under: " Whether the law laid down in the judgments of Lalit Kishore vs. Laxminarayan (1968 RLW 308), Ayub & Ors. vs. Bhanwar Chand & Ors. (ILR (1971) 21 Raj. 30) and Rao Raja Tej Singh vs. Hastimal (1972 RLW 133) is correct law and what can be the stage at which presumption can be raised under Section 90 of the Indian Evidence Act, 1872) and any matter which may be found relevant for just decision of the case relating to the raising presumption under Section 90 of the Indian Evidence Act by the appropriate Bench. "
(2.) THE appeal is yet to be decided on merit. Also, having regard to the limited scope of reference, it is not necessary to state the facts of the case in detail except to mention that this appeal by the plaintiff arises from a suit for declaration of title and permanent injunction. THE appellants claim title by adverse possession. THE cause of action for filing the suit was a decree of eviction obtained by respondent No. 1 Shyamlal against respondent No. 2 Chhogalal and respondent No. 3 Chothmal. According to respondent No. 1 he is owner of the premises. He had let out the same on rent to respondent No. 2 on 29. 5. 1956. Respondent No. 2 inducted respondent No. 3 as sub-tenant. Shyamlal filed suit No. 136/1967 and obtained decree for eviction against them. According to Shyamlal, the appellant had been set up by Chothmal to pre-empt the eviction decree. While dismissing the appellant's suit and deciding issue No. 4 as to whether respondent No. 1 was in possession of the land on the basis of the document executed in favour of his father by Lalu Chamar of Bhilwara on migsar-sudi 15 Samwat 1987, the trial Court held, placing reliance on the document, the respondent No. 1 had proved the fact that the land was mortgaged by Lalu Chamar in favour of his father Kanakmal, and since then it was in his posssession. In recording the said finding the trial Courtinter alia drew presumption under Section 90 of the Indian Evidence Act, 1892. At the time of hearing of this appeal, submission was made on behalf of the appellant that the presumption had been drawn without giving opportunity to the appellants to lead rebuttal evidence. On behalf of the respondents reliance was placed inter alia on Lalit Kishore vs. Laxminarayan, 1968 RLW 308, Ayub & Ors. vs. Bhanwar Chand & Ors. , ILR (1971) 21 Raj. 30 and Rao Raja Tej Singh vs. Hastimal, 1972 RLW 133. The learned Judge took the view that the judgments require reconsideration by a larger Bench. Apparently, the learned Judge was of the view that the decisions do not lay down the correct law. That is how, the appeal has come on reference. Section 90 of the Evidence Act may be quoted at the outset as under:- " 90. Presumption as to documents thirty years old.- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature any 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 a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation- . . . . . . . . . . . . . . . . . . . . . . . . . . " On a plain reading, it would appear that if the document- purported to be or proved to be 30 years old - is produced them proper custody, the Court may draw a presumption that the signature and other partsof the document are in the handwriting of the person who is shown to have signed or written the document, and in the case of a document being executed or attested, that it was duly executed and attested by the person who is shown to have executed and attested it. The only point for consideration is whether and at what stage opportunity to adduce rebuttal evidence, if any, is to be given to the other party to rebut the presumption arising under Section 90 of the Evidence Act.
(3.) BEFORE answering the question we may refer to the meaning of the expressions "may presume", "shall presume" and "conclusive proof" in Section 4 of the Evidence Act as under:- " 4. "may presume" - Whenever it is proved by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. " Shall presume" - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. " conclusive proof".- When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. " It would appear these expressions "may presume" or "shall presume" law down the rules of proof andby legal fiction mandate the Court to treat a fact as proved unless and until it is disproved. Section 90 occurs in Chapter V which is part of Part II of the Evidence Act captioned "on Proof". Chapter III deals with facts which need not be proved. Chapter IV deals with oral evidence. Chapter V contains provisions with respect to documentary evidence. Section 61 which is the first section in Chapter V provides that the contents of documents may be proved either by primary or by secondary evidence (as defined in Sections 62 and 63 respectivley ). Section 64 lays down that documents must be proved by primary evidence except in th cases mentioned thereinafter. Section 65 refers to cases in which secondary evidence relating to documents may be given. Section 67 lays down that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. Section 68 lays down that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there is an attesting witness alive and capable of giving evidence. ;