1. The plaintiffs brought this suit on the basis of a lease bearing date the 15th Bysack 1254, to recover possession of a certain mokurraree jote. The First Court gave the plaintiffs a decree, holding that the pottah was established. But the lower Appellate Court, on appeal, disallowed the presumption arising from the fact of the document being 30 years old. The lease was filed in Court two months before the 30 years had expired, hence the Judge says:--"When it was filed in this case it was not 30 years old. To allow the delay of the Court in hearing the case so to work that the defendants accept the document against them without the ordinary proof would be a violation of the known principle that the action of the Court is injurious to no one." The Judge then goes on to say : "I would hesitate to extend to it the presumption admissible in connection with documents of that age. Its appearance is, in my judgment, strikingly against its being of the age alleged. It was once before filed in Court, but when returned it was returned as a document which bore no date." The ex post facto filling in of the date indicates clearly dishonesty in connection with the date. I, therefore, refuse this document the presumption of section 90 of the Indian Evidence Act."
2. On the first point we think that the Judge is in error. It appears to us that the period of 30 years is to be reckoned not from the date on which the document is put into Court, but from the date on which having been tendered as evidence its genuineness or otherwise becomes the subject of proof. It is not until the case comes on for hearing, and the party producing it is called upon to prove it, that the Court after being satisfied that it comes from proper custody can be asked to make the presumption allowed by section 90 of the Indian Evidence Act.
3. On the second point we think that the Judge has probably made an error of fact, and he has certainly placed the plaintiffs, appellants, at a disadvantage. In coming to the opinion that the document bore no date when it was returned in 1876 to the vakeel Grish Chunder Roy, the Court acted upon the application which that vakeel tendered on the part of one Ameer Sirkar. It would be seen that in 1859 in a case tried before arbitrators, this document, the property of Judo Sirkar, was filed together with two documents, a pottah and a dakhilla, the property of one Ameer Sirkar. In the application which Ameer Sirkar made for the return of these three documents he mentioned the year of the execution of the pottah of Judo Sirkar, but not the month or date. The Judge accepted this application as evidence, although it had not been before the First Court, and drew from it the conclusion that the pottah originally bore no date. It seems to us, however, first, that he ought not to have accepted this additional evidence at all until he had recorded his reasons for so doing; and second, that he ought to have given the parties an opportunity of challenging the conclusion to be drawn from the application of Ameer Sirkar, and of producing evidence to show that the instrument of lease originally bore the date which appears on the face of it. It is clear that the application of Ameer Sirkar cannot in any way bind Judo or Judo's descendants, nor can Judo or his descendant be held liable for any omission of date which Ameer Sirkar may happen to have made. For it has been suggested, and is by no means improbable, that Ameer Sirkar being authorized by Judo to get back his document for him, made his application through the vakeel describing it only in general terms, whereas in describing his own documents he gave specifically the year, month, and date of execution.
4. Another argument has been addressed to us that the First Court found upon the evidence that the plaintiffs have been in possession for many years subsequent to the year 1254, and a right of occupancy accrued to them, and that consequently the Judge on appeal, even if he found the pottah to be not proved, should have allowed them to recover possession on the strength of that right. We think, however, that inasmuch as there was no alternative application of this kind, and no reference to the ri
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ght was made in the plaint, and consequently no issue raised on the point, we cannot how take it into consideration in special appeal. The judgment of the lower Appellate Court is therefore set aside, and the case remanded for retrial. The Judge will deal with it on its merits, having discarded from his mind the considerations which led him to refuse to give to the pottah set up by the plaintiffs the presumptions allowed by section 90 of the Evidence Act.