1. This appeal arises out of a suit to recover an elephant. The elephant fell into a pit dug on a hill referred to in the plaint as Choriappara hill and by the defendants as (1) Thonimannu Thekke mala or (2) Ottathannippattu or (3), Perumpattur Thekka mala. Each party claims ownership of the land in which the pit was dug as well as to have dug the pit. The main issue, therefore, depends upon the questions whether (1) the land belonged to the plaintiff or (2) to the defendant and (3) whether the pit was dug by the one party or the other. The first Court held that the plaintiff had proved his title to the land as well as that the pit had been dug by him and granted a decree in his favour. The learned District Judge held that the plaintiff had not established his title to the land and on this finding alone dismissed the plaintiff's claim. It is admitted by the learned Pleader for the respondent that the Appellate Court's finding is insufficient to dispose of the case. It is argued, however, that the alternative claim based on the admission that the land may not be proved to have belonged to the plaintiff is not taken in the plaint and that such a basis for the claim is now not open to the plaintiff. We think the plaintiff's claim on this alternative basis was sufficiently raised in the plaint and will ask for findings accordingly. Difficult questions of law may arise if the pit is found to have been dug by one of the parties on land belonging to the other or to a stranger. See Makath Unni Moyi v. Malabar Kandapuni Nair 4 M.K 268 : 4 Ind. Jur. 565, Blades v. Higgs (1865) 11 H.L. Cas. 62 : 11 Eng. Rep. 1474. Pollock and Wright on Possession, page 148.
2. With reference to the title of the land it may be that neither side can conclusively show it. Failure on the part of the plaintiff to prove title would not, however, be such a fatal defect as to necessitate a dismissal of the plaintiff's suit. The learned District Judge has found that the plaintiff has not established his title to the land. His finding is, however, vitiated in our opinion by the grounds on which he has excluded Exhibit D from evidence. He has rejected it on grounds mentioned in paragraph 2 of his judgment. With great respect to the learned Judge we are of opinion that he has misunderstood and misapplied the rules of law relating to secondary evidence. The District Munsif has approached the question from the right point of view in paragraphs 11 and 12 of his judgment. He considered first whether the original of which Exhibit D purports to be a copy, was in itself a valid document. On this point it was contended that the original was not stamped and that it could not be presumed to have been stamped. In this Court it was pointed out to us that Section 89 of the Indian Evidence Act dealing with the presumption as to stamps does not apply to the present case--the document not being such as could be called for as required by Section 83. It is then argued that Section 90 does not apply as Section 90 refers to original. We see no difficulty in applying Section 90 in so far as it is applicable to copies. In the case of a copy 30 years old Section 90 empowers the Court to presume that the copy is in the handwriting of the person in whose handwriting it purports to be. But Section 90 does not refer to stamps. We may, however, call the attention of the learned Judge to Section 114 of the Indian Evidence Act and may also point out that when the Court of first instance has drawn a certain presumption which the law empowers it to draw and especially when the presumption has reference to such a point as the present, being preliminary to the admissibility of a document, a Court of Appeal ought not lightly to interfere with the exercise of the discretion vested in the Court of first instance. The learned Judge in considering the admissibility of Exhibit D will, therefore, first consider the question whether he ought to differ from the District Munsif on the question that the original of Exhibit D was duly stamped. After doing so, unless he holds that there are sufficient reasons to entitle him to differ firm the District Munsif, he will have to consider whether the original was lost. In this connection it would be improper to expect that proof should be offered of the exact occasion when the document was lost. Documents would seldom be lost if parties could always account for the exact time and place when the document was lost by them. When events have occurred so long ago as in the case of Exhibit D, the Courts may well be expected to be satisfied with less clear evidence. In any case the question would not be so much whether the party has proved the exact mode and time of loss, but whether the party offering the secondary evidence is unable to produce the original for reasons not arising from his own default or neglect. See Section 65(c) of the Indian Evidence Act. Finally the District Judge will have to consider whether or not the copy is a genuine one. For this purpose the aid of Section 90 may be called in to the extent we have referred to. Section 114 may also be applicable.
3. We will, therefore ask the learned District Judge to record findings in the light of our observations on the following points:
(1) Whether Exhibit D was wrongly presumed to be genuine and admitted in evidence by the District Munsif?
(2) If not, then whether the plaintiff has proved title to the land on which the pit in question was dug?
(3) Whether the defendant has proved title to the said land?
(4) Whether it was the plaintiff or the defendant who dug the pit and made the capture of the elephant?
4. The findings should be submitted within one month from the re-opening of the District Court after the recess and 10 days will be allowed for filing objections.
5. The District Judge returned findings to the effect that Exhibit D was wrongly presumed to be genuine, that neither the plaintiff nor the defendant had proved his title to the land in which the pit was dug, but that the pit was dug by the latter.
6. This second appeal coming on for final hearing this day after the return of the findings of the lower Appellate Court upon the issues referred by this Court for trial, the Court delivered the following.