The onus of proof lies on the party claiming the authenticity of a document, and the failure to produce the original document may lead to adverse presumption. Additionally, the application for producing additional evidence must satisfy the conditions under Order XLI Rule 27.

JUDGMENT :

1. This Second Appeal is directed against the judgment and decree dated 30th November, 2010 passed by the learned Additional District Judge, 2nd Court, Malda in Title Appeal No. 48 of 2009 reversing the judgment and decree dated 30th June, 2009 passed by the learned Civil Judge (Junior Division), 2nd Court, Malda in Title Suit No. 120 of 2000. The present appellant was the plaintiff in the suit and prayed for a declaration that the Trust Deed dated 19th March, 1991 was absolutely a forged deed and the same was never executed by Chandi Pada Chakraborty who had no mental and physical capacity to execute any such deed. And further prayed for an injunction restraining the defendants from claiming absolute ownership of the suit property on the basis of alleged Trust Deed as the same was void and was never executed on 19.03.1991.

2. Defendant nos. 1, 2, 4, 5 and 6 filed written statements denying the plaint averments and that the plaintiffs have no right, title and interest over the suit property and they are not entitled to get any decree for permanent injunction. The learned trial Judge settled as many as six issues. While answering issue no.3 "Whether the deed dated 19.03.1991 is valid in the eye of law?" which is the prime issue in the suit the trial Judge held that the plaintiff completely failed to establish his title in the suit property. Plaintiff could not prove that the Trust Deed was procured by the false personification and by exercising fraud. Therefore, the trial Judge dismissed the suit on contest. The plaintiff/respondent preferred appeal against the said judgment and decree passed by the trial Court dismissing the suit. The Appellate Court reversed the findings of the trial Court and set aside the judgment and decree passed by the 1st Court.

3. Plaintiff challenged the authenticity of the Trust Deed and produced a certified copy of the same before the Court which was marked Exhibit on admission (emphasis by me). It was not denied that the deed was registered and the defendant was supposed to be in custody of the original deed inasmuch as the same was registered in 1991. The learned Appellate Court below relied on the certified copy of the said deed and held that since it was the onus of the defendant to produce the original deed and since they failed to produce it on the ground that the same was not delivered to them from the Registry Office, the learned Appellate Court drew adverse presumption and held that the defendant failed to discharge their onus by not producing the deed before the Court.

4. At the time when this appeal was admitted the following substantial question of law were framed

(1) "Whether the learned Judge in the Lower Appellate Court substantially erred in law in drawing an adverse inference against the appellants for non-production of the original Deed of Trust dated March 19, 1991 when it was not entered into the volume but was lying in the Office of Additional District Sub-registrar.

(2) Whether the learned Judge in the Lower Appellate Court substantially erred in law in issuing the onus on the defendants to establish that their father actually executed the Deed of Trust dated March 19, 1991.

(3) Whether the learned Judge in the Lower Appellate Court below substantially erred in law in accepting the plea of the plaintiffs that the father was mentally incapable to execute the Deed of Trust dated March 19, 1991 in the absence of any evidence on record."

5. Before the appeal was admitted it appears from the record that an application being C.A.N. 1929 of 2011 was filed by the appellant on 23rd February, 2011 by which the petitioner prayed for producing additional evidence under the provision of Order XLI Rule 27 of the Code of Civil Procedure. The said application is taken up along with hearing of the appeal. It is the appellants' plea that although, in 1991 the Deed of Trust was registered but they applied to get delivery of the original deed and thereafter only in 2011 the registered original