JUDGMENT

Sanjay K. Agrawal, J. - The second appeal preferred by the plaintiff was admitted for hearing by formulating the following substantial question of law: -

"Whether the transfer by valid execution of gift-deed dated 11.7.1959 has been proved in this case?"

(Parties hereinafter will be referred as per their status shown and ranking given in the suit before the trial Court.)

2. The suit property was admittedly held by one Gudil Uraon. He executed a registered gift deed dated 11-7-1959 in favour of Kose and Kandra in respect of his 3.83 acres of land situated at Village Khajuri, Tahsil Samri, District Surguja, now District BalrampurRamanujganj, which they accepted and came into possession of the suit land and partitioned between themselves in the year 1964 and their names were recorded in the revenue records on 18-5- 1971. It is the case of the plaintiff that the defendants being the sons of original holder Gudil Uraon got their names recorded in the revenue records and tried to interfere with his possession which necessitated Kose - plaintiff to file civil suit for declaration of title and permanent injunction which was opposed by the defendants by filing written statement disputing the execution of registered gift deed in favour of the plaintiff and his brother.

3. During the course of trial, the original gift deed could not be brought on record, therefore, by the order of the trial Court dated 8-4-1996 by granting the application under Section 65 of the Evidence Act,1872, the plaintiff was permitted to lead secondary evidence and accordingly, certified copy of the gift deed Ex.P-1C was produced and in order to prove the said certified copy of the gift deed, Assistant Grade-II Mani Shankar (PW-1) from the Office of the Tahsildar, Kusmi was examined to prove the gift deed and it was marked as Ex.P-1C during the course of trial without any demur or objection by the defendants.

4. Upon consideration of oral and documentary evidence on record, the trial Court by its judgment & decree dated 29-10-2004, decreed the suit of the plaintiff holding that the plaintiff has proved the execution of registered gift deed dated 11-7-1959 in his favour and in favour of his brother Kandra and on the date of mutation in their name on 18-5-1971, Gudil Uraon was present, and the defendants are interfering with the possession of the plaintiff only.

5. Feeling aggrieved and dissatisfied with the judgment & decree of the trial Court, the defendants preferred first appeal under Section 96 of the CPC in which the first appellate Court by its impugned judgment & decree set aside the judgment & decree of the trial Court dismissing the suit by granting the appeal finding inter alia that the execution of gift deed has not been proved in accordance with law, particularly there was no reason for Gudil Uraon to gift the suit land in favour of his maternal uncles in presence of his sons against which this second appeal under Section 100 of the CPC has been preferred by the plaintiff in which substantial question of law has been formulated which has been set-out in the opening paragraph of this judgment.

6. Mr. Bhaskar Payashi, learned counsel appearing for the appellant herein / plaintiff, would submit that once the plaintiff / appellant has been permitted to lead secondary evidence by the trial Court by granting application under Section 65 of the Evidence Act,1872, the defendants now, cannot turn around and question the admissibility of the gift deed Ex.P-1C, as no objection was taken at the time of admission of the gift deed. He would further submit that the said gift deed is a registered document and was validly executed and therefore it is valid in law and as such, the presumption would be that it was validly executed which the defendants have failed to establish its falsify by demonstrating that it is not valid in law. Thirdly, he would submit that the document Ex.P-1C dated 11-7-1959 is a 30 years old document and though the original could not be