1. The dispute in this appeal relates to muafi plot No 1268 situate in Qusha Bisauli, The allegation of the plaintiff was that he was the exclusive owner of that plot and that the defendant wrongfully got himself reworded as the owner of a half hare therein in June 1917. The plaintiff sued for a declaration that he was the exclusive owner of the said muafi plot and that the defendant had no right to it. He also sued for the ejectment of the defendant from the same. The defendant pleaded that the plot in question belonged to Kunj Behari from whom it devolved on his three sons, Hira Lal, Duli Chand and Timed Rai, that Umed Rai died Childless, and that he, as the son and legal representative of Duli Chand, was entitled to half share.
2. The plaintiff relied in support of his exclusive title on the deed of gift, purporting to have been exclusive by Pran Sukh in favour of Sri Kishen Das and Duli Chand on the 10th of August 185. His statement was that Pran Suka was the owner of a large plot, of which a portion was now in dispute and had planted a grove thereon and that be made a gift of the grove in favour of the Kishen as and Duli Chand on the 10th of August 1853. The deed of gift was produced but it is unregistered. It does not bear any signature purporting to be that of the executant. In the place reserved for the signature of the executuat a line exists, which is pointed out as the mark said to have been made by, Pran Sukh. The court of first instance examined the evidence adduced by the parties and the entries which existed from the time of the earliest Settlement in the revenue papers and came to the conclusion that, in view of the said entries, the document could not be presumed to be genuine It further said that no presumption should be raised in favour of the genuineness of that document because the document did not purport to bear the signature of Pran Sukh and did not even mention the name of the soribe It did not, there for, go into the other issues raised in the case and dismissed the claim. The lower Appellate Court, however, raised a presumption in favour of the genuineness of the said deed of gift, supporting its view on three grounds, The first was that the document was referred to in an agreement executed by Tirmal, Kunj Behari Lai and Duli Chand on the 18th of July 1853. That document is also unregistered and no direct evidence was produced to prove its genuineness. The Court of first instance had refused to presume that it was genuine. The lower Appellate Court presumed it to be genuine and treated it as corroborative evidence of the deed of gift under which the plaintiff based his title. The second piece of evidence on which the Court below relied in support of, a presumption being raised in favour of the genuineness of the alleged deed of gift was the testimony of Kri Kishen Das himself who gave evidence corroborating the said deed of gift, for Kishen Das did not, however, identify the document as having been executed by Pran Sukh or prove the alleged signature or mark of the executant. The third piece of evidence on which the lower Appellate Court also relied was the entry made at the time of the last Settlement when Kishen Das was recorded as the owner of a half share of the grove in question, which, be claimed, had been allotted to him by partition. The reasons given by the Court of first instance for refusing to raise a presumption in favour of she genuineness of the document do not appear to have been adequately considered by the lower Appellate Court. The presumption in favour of a document of this nature, which does not purport to bear the signature or mark of the executant or the name of the so be, ought to be cautiously made. Section 90 of the Evidence Act permits the presumption to be raised in favour of the signature and every other part of such document which purports to be in the handwriting of any particular person being in that person's handwriting. But this document does not purport to bear the signature of Pran Sukh. The line drawn below the plance left for the Signature is not described as a mark made by Pran Sukh, and, as observed IN Sheo Nandan Ahir v. Ram Lagan Singh 30 Ind. Cas. 908 : 13 A.L.J. 921 and Gokul Singh v. Saheb Singh 38 Ind. Cas. 162 : 15 A.L.J. 121 the utmost the Court could do was to have presumed that the signature was in the handwriting of the scribe, but it could not have presumed that the scribe had an authority irma the executants to sign his name on Win document. The reference to the document. It in another deed, the admissibility of: which is equally open to question, is of the vail, because the latter document, similarly, does not bear the name of the scribe or property to bear the signature of the executants or his mark. The learned Counsel for the plaintiff respondent urges that the lows:? Appellate Court has arrived at a 'define to ladies; of fast baaed on the evidence adduced in the casein favour of the plaintiff title, if the deed of gift itself baa been impropriety admitted in evidence, no adequate proof having been offered to show its genuineness, the finding at which the lower Appellate Court has arrived cannot be considered as final or conclusive. Section 167 of the Evidence Act provides that the improper admission or rejection of evidence shall not the ground of itself for new trial or reversal any decision in any ease, if it shall appeal the court before which such objection it reward that, independently of the evidence objected t and admitted, there was sufficient evidence to justify the decision, or that if the decision evidence had been is arrived, it ought, not to have varied the decision, but the mere fact that the learned Subordinate Judge refers to the evidence of Sri Kishen Had and the entry made at the time of the last Settlement and has relied on thorn as corroborative evidence in proof of the deed of gift, does not show that his conclusion is based on much corroborative evidence independently of the dead of gift. The admission of the alleged deed of gift and of the agreement said to have been executed by Tirmal, Kunj Buhari Lal and Duli Chand which were not duly proved, has unquestionably prejudiced the trial of the appeal, and the proper course in the circumstances seems to be that the case should go back to the lower Appellate Court for re trial on the issues raised before it after the exclusion of the documents before mentioned. We accordingly direct that the appeal be reinstated under its original number and re-heard after the exclusion of the said documents the costs of this appeal will abide the event.