Decided on December 05,1901



- (1.) WE think the Subordinate Judge was wrong in admitting exhibit XV in evidence as proving that in 1862 a deed was in fact executed by the parties referred to, and in the terms set out, in that exhibit. In the circumstances, exhibit XV was admissible as secondary evidence under the provisions of Secs.63 and 65 of the Evidence Act. But it is only secondary evidence of the contents of a document. There is no evidence that the document, of the contents of which the exhibit is evidence, was in fact executed in 1862 between the parties mentioned, and in the terms stated in the exhibit. No doubt the document of which exhibit XV is a copy purports to have been executed in 1862 and therefore purports to be more than thirty years old, but it is not produced, and this being so, we think the presumption which, under Section 90 of the Evidence Act, may be made where a document over thirty years old is produced from proper custody, ought not to be made. It is not necessary to consider whether we should be prepared to follow the decision in Khetter Chunder Mookerjee V/s. Khetter Paul Sreeterutno I.L.R. 5 Calc. 886, if it had been shown, as it was in that case, that the original document could not be produced by reason of its haying been lost. In the present case there is nothing to show that the original document, which admittedly is in existence, and in the custody of the Zamorin, could not have been produced if proper steps to procure its production had been taken. It has been argued that Section 114 of the Evidence Act enables us to make the presumption of the genuineness of the original document; but the law as to the presumptions which may be made in the case of documentary evidence is laid down in the sections which deal with documentary evidence, and Section 114 has no application to a case of this sort. Apart, however, from the evidence of title the Judge states that he believes the oral evidence as to twelve years possession by the defendant and disbelieves the plaintiff's evidence of possession. On the question of possession there is, therefore, a finding of fact in defendant's favour with which we cannot interfere on second appeal.
(2.) THE second appeal is dismissed with costs.;

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