G.K. Misra, C.J.
1. Plaintiffs are the appellants. Defendant No. 1 is the wife of the defendant No. 2. Defendant No. 3 is the father of defendant No. 1. Defendant No. 4 is the Marfatdar of the deity-landlord from whom defendants 1 and 2 claim to have obtained a lease. Deceased defendant No. 5 transferred the disputed land to the plaintiffs by a registered sale deed Ext. 2 dated 5-7-1961 for Rs. 200/-. She died during the pendency of the suit without leaving any heirs and has not been substituted. Plaintiff's case is that the disputed property belonged to P. Somalingam, the husband of deceased defendant No. 5. He was unheard of and was presumed to be dead. Plaintiffs base their title on Ext. 2. The suit was filed in 1965. The suit is for declaration of title and recovery of possession. Defendant No. 1 claims title to the disputed property on the strength of a registered deed of lease Exhibit A dated 7-3-1944 from defendant No. 4. Defendants 1 and 2 also claim title by adverse possession. Plaintiffs made out a case in the plaint that when defendant No. 5 and her husband decided to go away to Parlakhemundi they wanted somebody to look after their house. Defendant No. 3 was known to them. At his instance the first two defendants were appointed caretakers and accordingly an unregistered and unstamped agreement (Anumati Patra) was executed by P. Somalingam on 25-12-1943 in favour of defendants 1 and 2. Therein, defendants 1 and 2 were permitted to occupy the house and to pay all taxes and a clear prohibition was made that they would not commit any injury to the house or convert the land to their own purposes. Defendants 1 and 2 in their turn executed on the very same day a similar document admitting the title of P. Somalingam and his wife and agreeing to look after the house. In the written statement there was a denial of such a case.
The trial Court decreed the plaintiffs' suit holding that their predecessor-in-interest had interest in the disputed property and they acquired valid title by Exhibit 2; the first two defendants were in possession of the disputed property by an amicable arrangement and that they constructed a pucca house in 1958 whereby they exercised a right in their own favour. The learned1 lower appellate Court agreed with the trial Court so far as plaintiffs' title is concerned and both the Courts rejected the defence case of acquisition of title on the strength of the lease. The lower appellate Court, however, held that the first two defendants acquired title by adverse possession by being in possession of the disputed land from 1943 to 1965 for more than the prescriptive period. On this finding, the suit was dismissed. It is against the judgment of the appellate Court that the plaintiffs have filed the second appeal.
2. Before examining the infirmity in the judgment of the lower appellate court it would be appropriate to give a clear picture of the law in the light of which the case would be determined. Plaintiff's suit for recovery of possession is based on title. If plaintiffs' title is established, the onus is on defendants 1 and 2 to prove acquisition of title by adverse possession. The suit was filed subsequent to the new Limitation Act, 1963 having come into force and Article 65 of that Act will apply in terms.
3. Article 65, so far as relevant, runs thus :
Description of suit.Period of limitation.Time from which period begins to run.
65.For possession of immovable property or any in. tereat therein based on title.
Twelve years.When the possession of the defendant becomes adverse to the plaintiff.
The onus is, therefore, on defendants 1 and 2 to prove that the title of the plaintiffs was lost by acquisition of title by adverse possession on their behalf. The concurrent finding of the courts below that the plaintiffs have title is to be taken as to have been determined by this court conclusively and is not to be re-agitated in the lower appellate court after remand.
4. So far as possession is concerned, admittedly defendants 1 and 2 were in exclusive continuous possession from 1943 to 1965. The prescriptive period is, therefore, satisfied as the possession was for more than twelve years. In 1958, defendants 1 and 2 started construction of a pucca house. Such a construction was in clear denunciation of the right, title and interest of the plain-tiffs and from 1958 to 1965 they were clearly in adverse possession.
The only question which would decide the fate of this appeal is whether defendants 1 and 2 were in permissive possession from 1943 to 1958 or even during that period they were in possession in exercise of their own right, title and interest. On this question the onus would be on the plaintiffs. Plaintiffs shall have to prove that defendants 1 and 2 were inducted into the house under the arrangement as set up in the plaint and if they establish such a case, the period from 1943 to 1958 would be excluded from consideration in determining the prescriptive period.
5. Ordinarily, a finding on such a question would be a pure finding of fact binding on me in second appeal. Mr. Dasgupta accordingly contended that the learned lower appellate court did not address itself to the vital evidence in the case and committed errors in excluding admissible evidence as inadmissible. As it requires consideration of various materials relevant to the determination of this issue, it is desirable that the matter would go back to the lower appellate court for recording a finding whether plaintiffs have been successful in establishing that defendants 1 and 2 were in permissive possession from 1943 onwards until the latter exercised the hostile animus in 1958.
6. In this connection the following pieces of evidence are relevant; (i) depositions of P.Ws. 1 and 2; (ii) Exts. 1 and 1/a; and (iii) Exts. 5 and 5/a.
7. Ext. 1 is a draft of the Anumati Patra alleged to have been executed by P. Somalingam, the admitted owner of the house, in favour of defendants 1 and 2 on 25-12-43. The original of Ext. 1 was not before the court. The learned Subordinate Judge held that in the absence of the original being called for from defendants 1 and 2, Ext. 1 is inadmissible in evidence. Here, he committed a serious error of law. In the plaint, Ext. 1 was referred to, Defendants 1 and 2 denied existence of such a document. Under Section 66 of the Evidence Act, secondary evidence of the contents of the documents referred to in Section 65, Clause (a), shall not be admissible unless certain steps are taken under this section, as prescribed. The proviso to the section engrafts certain exceptions. Clause (2) of the proviso lays down that no notice shall be required in order to render secondary evidence admissible in a case when from the very nature of the case, the adverse party must know that he will be required to produce it. In this case, plaintiffs clearly made a reference to Ext. 1 in the plaint. Defendants 1 and 2 denied existence of such a document. The question of calling for the document from them does not arise. Ext. 1 cannot, therefore, be said to be inadmissible in evidence due to the absence of primary evidence. Moreover, Mr. Dasgupta makes a statement that plaintiffs, in fact, called for the document from defendants 1 and 2. That is a matter which the lower appellate court would examine,
Similarly, defendant No. 5 was called for by a petition to produce the original of Ext. 1/a and the copy of Ext. 1. Defendant No. 5 died and no document has been produced. Ext. 1 (a) is, therefore, not inadmissible in evidence. The learned Subordinate Judge also committed a serious error in altogether not dealing with Ext. 1/a.
8. In this connection the learned lower appellate court would critically examine the evidence of P.Ws. 1 and 2. P.W. 1 has proved Exts. 1 and 1/a. P.W. 2 stated that he heard of the transactions. Whether Exts. 1 and 1/a are genuine or not is a different matter; but they are admissible in evidence. The learned lower appellate court would examine if the evidence of P.Ws. 1 and 2 is to be believed so as to accept these documents as genuine. If these documents are genuine, then clearly they indicate that defendants 1 and 2 were inducted as licensees and unless they prove as to the point of time when the permissive character of the possession was altered into one of hostile animus, their actual physical possession would be on behalf of the predecessor-in-interest of the plaintiffs and would be excluded from calculation of the total prescriptive period.
9. The learned lower appellate court would also examine how far there is any admission in Ext. 5 that defendants 1 and 2 occupied the disputed land only in 1958. It would also examine whether Ext. 5/a has any evidentiary value.
10. The learned Subordinate Judge did not deal with any of these documents. In that connection the learned lower appellate court will discuss the entire evidence given on behalf of the defendants.
11. On the aforesaid analysis, the judgment of the lower appellate court is set aside as being contrary to law inasmuch as it failed to notice the material pieces of evidence in determining the real issue in controversy. The appeal is allowed and the case is remanded. Learned Advocates for the parties agreed to this case being taken up for hearing by the District Judge, Cuttack, himself on 7th of December, 1973 and they have been directed to appear before the District Judge, Cuttack, and argue the case on that date. Costs will abide the result. Records of the case be sent back at once.