In the judgment of the case – Iqbal Basith and others v. N. Subbalakshmi and others, delivered on December 14, 2020, a 3-judge bench of the Supreme Court, consisting of Justices R.F. Nariman, Navin Sinha and Krishna Murari, has considered the factors that the original defendant No. 1 did not appear in person to depose, and be cross examined in the suit; his younger brother deposed on the basis of a power of attorney, acknowledging that the latter had separated from his elder brother; and no explanation was furnished as to why the original defendant did not appear in person to depose and concluded that “We find no reason not to draw an adverse reference against the defendant No. 1 in the circumstances”.
The Court has pointed out and quoted from its decision in the case- Iswarbhai C. Patel v. Haihar Behera – (1999) 3 SCC 457 as under :
"17......Having not entered into the witness-box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of section 114 of the Evidence Act, 1872.”"
The Trial Court framed issues. The question of title of the appellants was not one of the issues:
1. Do the plaintiffs prove their lawful possession of the suit property?
2. Do the plaintiffs prove, the defendants interfered with their possession of suit property?
3. Whether the plaintiffs have to pay court fee on the market value of the property, in view of the pleadings in plaint?
The Karnataka High Court framed the issues afresh. Again, title was not one of them:
"1.Whether plaintiffs have proved identity of suit-schedule property? 2. Whether plaintiffs have proved that they are in lawful possession of suit- schedule property? 3. Whether plaintiffs have proved interference by defendants? 4. Whether the trial court judge has properly appreciated evidence on record and arrived at proper reasons and conclusions?”"
Both the courts then proceeded to consider the title of the appellants to decide lawful possession. The respondents had themselves produced a certified copy of Exhibit D-1 of September7, 1946. The appellants produced photo copies of all other resolutions, government orders and sale deed in favour of their vendor Original Appellant Majid Khan by the Municipality. The failure to produce originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of the Plaintiff’s Witness -1 (PW-1) who looked after property matters. The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable.
The photocopies were marked as exhibits without objection. The respondents never questioned the genuineness of the same. Despite this and the fact and these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for non-production of the originals, those were rejected without any valid reason holding that there can be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers. This finding in the SC’s opinion is clearly perverse in view of section 114 (e) of the Indian Evidence Act, 1972, which provides that there shall be a presumption that all official acts have been regularly performed.
In its decision of the case- Lakhi Baruah v. Padma Kanta Kalita – (1996) 8 SCC 357, with regard to admissibility in evidence of thirty years old documents from proper custody. SC has observed:
“14. It will be appropriate to refer to section 90 of the Evidence Act, 1872 which is set out 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 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 a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
“ 15. Section 90 of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting , signature or execution of old documents after lapse of 30 years. In order to obviate such difficulties or improbabilities to prove execution of an old document, section 90 has been incorporated in the Evidence Act, 1872, which does away with the strict rule of proof of private documents.
“ Presumption of genuineness may be raised if documents in question is produced from proper custody. It is, however, the discretion of the court to accept the presumption flowing from section 90. There is, however, no manner of doubt that judicial discretion under section 90 should not be exercised arbitrarily and not being informed of reasons.”
The appellants were seeking the relief of permanent injunction only. Their title to the suit-property was not disputed by the respondents. The respondents acknowledged that they were in ownership and possession of plot No. 42, which had no concern with the suit-property and was situated at a distance of 103 feet with other intervening properties. The two reports of the Pleader-Commissioner also confirmed the possessory title of the appellants along with property tax registers and municipal tax receipts. The appellants had more than sufficiently established their lawful possession of the suit-property.
The conclusions reached by the courts below that the appellants had failed to establish title and therefore could not be said to be in lawful possession is therefore held to be perverse and unsustainable. The respondents’ feeble questioning of the title of the appellants has been brushed aside, holding that their conduct was questionable. Yet, the appellants were wrongly denied the relief of permanent injunction. In the SC’s considered opinion that both the courts below posed unto themselves the wrong question venturing to decide the title of the appellants and arrived at an erroneous conclusion.
On basis of this evaluation of the legal position , the material and evidence on record , the SC has held that the impugned orders dismissing the suit and appeal, are therefore, not sustainable and the SC has set aside the impugned orders of both the Trial Court and the High Court.