Sharma, J. - (1.) THIS is a defendant's appeal in a suit for possession of certain property in village Palthana which has been dismissed in appeal by the learned Civil Judge, Sikar.
(2.) THE plaintiff's case is that the property in dispute which is given in schedule B of the plaint was owned by Boduram and Gopia and that by partition, the property given in Schedule B came to the share of Gopi Ram. THE plaintiff who is the tenant of Gopi was in possession of the property in suit sometime upto the year, 1944, when the defendant broke open the locks threw away the fodder belonging to the plaintiff and illegally got possession of the property. The defendant denied the plaintiff's title or possession in the property in dispute and pleaded that the property belonged exclusively to the defendant. The learned Munsiff. Sikar who tried the case framed the following four issues in the case - (1) Whether the share of the plaintiff in the house described in Schedule A of the plaint is half ? (2) Whether the portion of that house described in Schedule B was received by the plaintiff in partition ? (3) Whether defendants caused damage to the plaintiff to the extent of Rs. 30/-by demolishing partition wall in the house in dispute? (4) Whether the defendants took away fodder worth Rs. 10/- of the plaintiff? He held that the plaintiff was the adopted son of Girdhari who was in turn the adopted son of Gopi and that the property in dispute had come to the plaintiff's share according to the partition and the plaintiff had been in possession of the same till he was dispossessed by the defendant. Consequently, he gave a decree for possession to the plaintiff. The defendant went in appeal and the learned Civil Judge, held that valid adoption of the plaintiff by Girdhari was not proved and its was also not proved that the property had come into exclusive possession of the plaintiff. He consequently, allowed the appeal and dismissed the suit. In this second appeal, it has been argued by Mr. C. L. Agarwal on behalf of the appellant that issues were not properly framed by the trial court and there being no issue on the factum or the validity of the adoption, the plaintiff was not in a position to produce evidence both as regards factum as well as validity of the adoption. It has further been argued that the lower appellate court wrongly excluded the two documents Exs. 1 and 2 which proved that the property in dispute had come to the share of Girdhari, the adoptive father of the plaintiff after partition. It was argued that the documents were more than thirty years old and the trial court had made a presumption in favour of their genuineness under sec. 90 of the Evidence Act and the lower appellate court was not justified in discarding these documents from evidence on the ground that they were not legally proved. On behalf of the respondent, it was argued by Mr. D. M. Bhandari that the parties knew their case and so no specific issue on the point of adoption was necessary and even if it were, the parties have not been prejudiced by the omission to frame that issue. Further, it was argued that the two documents when tendered were less than thirty years old and, therefore, the lower appellate court was per-fectly justified in discarding them. I have considered the arguments of both the learned counsel. So far as the first question is concerned, I certainly think that the point of factum or validity of adoption ought to have been put into a clear issue. No issue was framed either on the point of factum of adoption or validity. The plaintiff could, therefore, very well complain that he was not in a position to produce sufficient evidence on this point. I find from the grounds of appeal filed by the defendant himself in the lower appellate court and therein he has himself raised an objection that a clear issue ought to have been framed on the point of adoption. Both the parties therefore, considered it necessary that a clear issue on the point of adoption ought to have been framed. It was further argued by Mr. DM. Bhandari that it is not at all necessary to go into the question of adoption in this case because the plaintiff has failed to prove that the property in suit had come to his share by partition It was argued that the two documents relied upon by the plaintiff did not disclose that the property mentioned therein was identical with the property given in the plaint. I may first of, all say that in order to see whether the property in suit is identical with the property given in these two documents, it is necessary first to admit those documents into evidence It is only after their admission into evidence that the question arises whether the property which is given therein is identical with the property in suit. It is the function of the first appellate court to given a finding of fact whether the property claimed in this suit has come to the share of the plaintiff. It would be for that court to find out whether the property given in the two documents is identical with the property given in the plaint. For me it is only necessary to decide whether the lower appellate court was justified in excluding these two documents from evidence. On this may opinion is that the lower appellate court was not justified The crucial time at which it is to be seen whether the document is more than thirty years old is the time when that document is asked to be accepted in evidence. The earliest point at which the court could be asked to accept it was when the plaintiff was examined. In one of the rulings referred to on behalf of the plaintiff in the case of Mahadeo Prasad vs. Mst. Nasiban (l) it was held that a court has a right to presume under sec. 90 of the Evidence Act the genuineness of a document which was not thirty years old either on the date of the suit or on the date of the production, but was thirty years old when arguments were heard. It was held in the case of Lodha Singh vs. Mst. Hukam Devi (2), that the period of thirty years mentioned in sec. 90 of the Evidence Act must be counted not from the date on which the document is put into court, but form the date on which after it has been tendered in evidence, its genuineness becomes the subject of proof. The genuineness of the document in question is not the subject of proof at the earliest when the plaintiff was examined in this case. Both the documents were executed on Jeth Sudi 8, Svt. 1974, corresponding to 29th May, 1917,where-as the plaintiff was examined on the 15th of July, 1947. Therefore, even at the earliest stage the document was more than thirty years old. It is within the discretion of the first court to presume a document more than thirty years old to be genuine or not and this discretion can be interfered with only when it has been arbitrarily or capriciously exercised. It do not think that the first court exercised its discretion in such a way. The lower appellate court was therefore not justified in excluding these documents from evidence. The lower appellate court has very perfunctorily discussed the question of possession. Even so far as the oral evidence is concerned, I do not find that it has been judicially considered. If the oral evidence had been read in the light of the two documents, it is possible that the lower appellate court might not have gone to the same conclusion on the point of possession to which it has come without considering them. I am, therefore, not prepared to maintain the decree of the lower appellate court and consider it necessary to remand the case. This case will be remanded not only for the decision of the appeal on the evidence already on the record in the light of the observations made above but I think is necessary also to frame the following two issues on the point of adoption of Girdhari as well as the plaintiff - (1) Whether Girdhari was the validly adopted son of Gopi ? (2) Whether the plaintiff is the validly adopted son of Girdhari. Both the parties will be entitled to produce evidence on these two issues. The appeal is allowed, the decree of the lower appellate court is set aside and the case is remanded to it for decision according to law and in the light of the observations made above. The costs of this appeal shall abide the result of this appeal in the lower appellate court after this remand. ;