Case Note & Summary
The case involves a second appeal arising from a suit for possession filed by the respondent (original plaintiff) against the appellants (defendants) in respect of agricultural land. The plaintiff claimed title to the suit property based on a gift deed dated 16.01.1930 executed in favor of his father. The defendants, who were in possession, contended that the plaintiff was not the exclusive owner and that the suit was not maintainable without impleading other co-owners. The trial court decreed the suit in favor of the plaintiff, and the first appellate court confirmed the decree. In the second appeal, the appellants raised substantial questions of law regarding maintainability of the suit by a co-owner without impleading other co-owners, reliance on a document not pleaded in the plaint, and the applicability of Section 90 of the Indian Evidence Act, 1872 to the gift deed. The High Court held that a co-owner can maintain a suit for possession against a trespasser without impleading other co-owners, as the suit is for the benefit of all. It further held that the courts below were justified in relying on the gift deed even though it was not specifically pleaded, as the parties had led evidence on it without objection. Regarding Section 90, the Court held that the presumption under Section 90 is discretionary, but in the absence of suspicious circumstances, the lower courts properly exercised discretion in presuming due execution and attestation of the 30-year-old document. The appeal was dismissed, confirming the decree for possession in favor of the plaintiff.
Headnote
A) Civil Procedure - Co-owner Suit for Possession - Maintainability - A co-owner can maintain a suit for possession against a trespasser without impleading other co-owners, as the suit is for the benefit of all co-owners. The Court held that the suit was competent and maintainable at the instance of the respondent alone. (Paras 5-6) B) Evidence Act - Document Not Pleaded - Reliance on Unpleaded Document - It is open for the Court to rely on a document not pleaded in the plaint if the parties have led evidence on it without objection. The Court held that the gift deed dated 16.01.1930 at Exh.23 could be relied upon despite not being pleaded. (Paras 11-12) C) Evidence Act - Section 90 - Presumption as to 30-Year-Old Document - Section 90 of the Indian Evidence Act, 1872 vests discretion with the Court to presume proper attestation and execution of a document 30 years old. The Court held that the lower courts properly exercised discretion in raising the presumption in favor of the gift deed. (Paras 12-13)
Issue of Consideration
Whether a suit by a co-owner for possession is maintainable without impleading other co-owners; whether it is open for the Court to read in evidence documents not pleaded in the plaint; whether Section 90 of the Indian Evidence Act, 1872 vests discretion with the Court to apply presumption of proper attestation and execution to a document 30 years old.
Final Decision
The Second Appeal is dismissed. The judgment and decree dated 04.10.1994 passed by the Additional District Judge, Pusad in Regular Civil Appeal No. 59/1990 confirming the decree dated 22.02.1988 passed by the Joint Civil Judge, Junior Division, Pusad in Regular Civil Suit No.159/1978 is confirmed. No order as to costs.
Law Points
- Co-owner can maintain suit for possession against trespasser without impleading other co-owners
- Court can rely on documents not pleaded if evidence is led without objection
- Section 90 of Indian Evidence Act
- 1872 presumption is discretionary but can be applied to 30-year-old document if no suspicious circumstances
