- (1.) THIS second appeal has been filed by the defendant against whom the respondent's suit for division of holding was decreed by the trial court, the Divisional Commissioner, Bikaner confirming the same in the first appeal.
(2.) WE have heard the learned counsel for the parties and have examined the record as well. Index Singh brought a suit against Shrichand and others with the allegation that the plaintiff's grand father Prem Singh cultivated some land as Nau-taur prior to Svt. 1966 in the capacity of a Karta-khandan, that Prem Singh had four sons Lal Singh, Ran Singh, Karam Singh and Shrichand; that Prem Singh had considerable agricultural land in Punjab as well, that he was unable to lookafter his land personally and hence his eldest son Lal Singh was managing them on his behalf, that in Svt. 1966 when Settlement operations were carried out in the area, Shrichand, Lal Singh and Karam Singh entered into a conspiracy with the officials of the Settlement Department and arranged to have a mutation entered in their favour in place of Prem Singh on 13. 7. 1909 A. D. that all these proceedings were carried out fraudulently, that Prem Singh died about 13 years ago, that the plaintiff's father Ram Singh used to receive his 1/4 share of the produce from the defendants, that after his demise the defendants refused to give 1/4 share to the plaintiff and stated that as his name was not entered in the revenue record, he has no share in it. It was prayed that a devision of the holding be effected and 1/4 share be allowed to the plaintiff. Lal Singh having died, his sons Hajur Singh and Sandra Singh denied the claim and pleaded that Prem Singh had in his own lifetime got the land mutated in the name of his three sons Shrichand, Karam Singh and Lal Singh; that there was no fraud and that no share of the produce was ever paid to the grand father or the father of the plaintiff. The following issues were framed in the case: - (i) Is the plaintiff not entitled to a share in the land in dispute as it was made Nautaur by Shrichand, Lal Singh and Karam Singh? (ii) Did Shrichand, Lal Singh and Karam Singh, with the collaboration of the revenue officials, get the mutation sanctioned in their favour in the lifetime of Prem Singh through deceit and fraud? (iii) Is the plaint deficit in the court fee? (iv) Has the possession of the defendant become adverse to the plain tiff, (v) Is the suit beyond the jurisdiction of the court? (vi) Is the suit within limitation? (vii) To what relief the plaintiff is entitled? After recording the evidence of the parties, the trial court came to the conclusion that as the evidence led by the plaintiff tended to show that all the four sons of Prem Singh assisted him in cultivation hence it should be presumed that the plaintiff's father Ran Singh, one of the sons of Prem Singh, did have a share in the land. As regards the second issue the trial court, to say the least of it, adopted a queer line of reasoning. It held, that as the certified copies of the mutations Ex. P. 2 and P. 3 do not show that Prem Singh had a son Ran Singh as well and as it did not give any reason for depriving Ran Singh of his rights, all these proceedings would be held to be erroneous and forged. We are not sure if the learned trial court fully appreciated the contents of the term 'forged'. For, if it had done so it should have not gone to the extent of employing it in this context. We need not examine the findings of the trial court on other issues as the entire case hinges on the determination of the issues discussed already. The first appellate court almost reproduced the arguments advanced by the trial court and rejected the appeal. Hence this second appeal. We feel constrained to observe that both the lower courts failed to approach the case in a proper judicial perspective. It is an admitted fact that Prem Singh's name originally stood in the Revenue record as the tenant of the land in dispute. During the Settlement operations a mutation was entered at the instance of this Prem Singh and was sanctioned in favour of these three sons Lal Singh, Karam Singh and Shrichand on 13th July, 1909. The order of the Revenue Officer sanctioning the mutation makes it perfectly clear that Prem Singh appeared before him and stated that for reasons of his engagement elsewhere he wanted tenancy to be transferred in the name of the aforesaid three sons. This mutation form was filled in by the Patwari and was sanctioned by a Revenue Officer. Sec 90 of the Indian Evidence Act was referred to before the trial court, but strangely enough, it was held by it that it had no application. Apparently, the learned trial court took no pains to examine the section. It is laid down therein that where any document proved to be 30 years' old is produced from proper custody it may be presumed that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that persons' 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. It is true that this section is discretionary and that the court is not bound to raise this presumption. Discretion must be exercised judicially and not arbitrarily. It is true that great care is required in applying the presumption but it is equally true that where documents are coming properly from proper custody this presumption should be raised, otherwise a grave injustice is perpetrated. The presumption may be rebutted but if there is no evidence in rebuttal of it the same will occupy the field. In the present case, we find that this mutation was sanctioned in 1909 A. D. during the course of Settlement and continued intact during the period of that settlement as well as that of a revised Settlement. Prem Singh admittedly lived for a number of years after this mutation and so did Ran Singh, the father of the pliantiff. Yet it is significant to observe that no objection was ever raised by any of these persons to the validity of this mutation. The plaintiff has sought to attack these proceedings which took place more than 30 years ago through the medium of such persons as cannot be expected to have a personal knowledge of the affair. In fact, oral evidence of this nature does not deserve any credence in the face of continued entries in the revenue record for a number of decades. There is no reliable evidence to show that the plaintiff or his father was ever allowed any share of the produce of the land in recognition of his right in the tenancy, it is apparent that the finding of the lower courts though concurrent, are manifestly absurd and perverse. Entries in the Revenue Record from Svt. 1960 are available on record. Till Svt. 1960 to 1963 the name of Moha-mmed Deen appears and in Svt. 1964 appears the name of Prem Singh as Khatedar. In subsequent years i. e. , in 1909 A D Prem Singh got the land mutated in the name of his three sons, the name of the plaintiff's father being excluded from it. There can be no valid objection to this transaction. Prem Singh had acquired the tenancy himself and he voluntarily passed it on to his three sons to which he had a perfect title. Prem Singh's 4th son, Ran Singh, never challenged this transaction as long as was alive. The plaintiff can have no valid ground to challenge the same when his father had accepted it as validly binding upon himself throughout the time he lived. The story about payment of produce or a share of it to the plaintiff's father is a pure connection and is not based on any tenable evidence. The result is that the findings arrived at by the lower courts are not at all based on evidence but, really speaking, are in flagrant violation of the same. We, therefore allow this appeal, set aside the judgment and decrees of the lower courts and direct that the suit filed by the plaintiff Inder Singh for division of the holding against Shrichand and others in the trial court shall stand dismissed with costs through out. .;