Secondary evidence of a document is admissible only if the non-production of the original document is satisfactorily established. The burden of proving the due execution of a document lies on the party who relies on it.

S. P. MOHAPATRA, J.

( 1 ) THIS second appeal has been filed by defendants 1 and 4 against the judgment of reversal dated 22-4-1954 of Sri R. C. Misra, District Judge of Sumbulpur arising out of a suit brought by the plaintiff for a mere declaration of his title to the property in dispute with an area of 25-84 acres appertaining to holding No. 9; the rental payable in respect of the holding being Rs. 6/12/-only. The cause of action for the suit is the order of attachment under Section 146, Criminal Procedure code, dated 5-3-1951, arising out of proceedings under Section 145 of the said code started at the instance of the present appellants. The recorded tenants in respect of the holding were defendant No. 1 Dasarathi Chamar and his brother kunjaban.

( 2 ) THE plaintiff's version is that a deed of surrender was executed by defendant no. 1 for self and on behalf of his minor sons (defendants 3 to 5) and his brother's major son, defendant No. 2; that the deed of surrender was also registered on 76-1938, the certified copy of which is Ex. 3 in the present suit: that the present defendant No. 7 is the landlord in whose favour the deed of surrender was executed, that in the year 1922 defendants 1 and 2 had executed a usufructuary mortgage bond in respect of a portion of the suit holding covering nearly six acres; that the mortgage debt was not discharged by the date of surrender, the landlord, defendant No. 7, however, brought a suit for redemption (which was numbered as title Suit No. 22 of 1939) against the mortgagee alone; the sums secured by the mortgage was only Rs. 80/- and the landlord ultimately got a decree and took delivery of possession through Court on 7-2-1940. The plaintiff brings the present suit on the basis of a lease granted by the landlord-defendant No. 7 on 6-5-1942. The lease (Ex. 5) was granted on receipt of a premium of Rs. 900/- in favour of the plaintiff and defendant No. 6; and defendant No. 6 had in the year 1943 relinquished all his rights in favour of the plaintiff and the plaintiff's further version is that defendants 1 to 5 created disturbances in his possession from time to time and in the year 1945 proceedings under 5. 145 were started between the plaintiff and the defendants in which defendant No. 1 entered into a compromise undertaking not to create any further disturbance. But soon after there were again disputes and disturbances over the possession of the disputed lands on account of which the defendants started proceedings under Section 145, Criminal P. C. , which terminated in an order under section 146, Criminal P. C. , serving as the cause of action for the present suit.

( 3 ) THE short defence necessary for the purpose of appreciating the points raised in this second appeal is that there was no surrender of the holding by the defendants nos. 1 and 2 who had never executed the alleged deed of surrender.

( 4 ) THE trial Court dismissed the plaintiff's suit on the ground that the surrender had not been proved. But the lower appellate Court in the first instance remanded the case allowing the plaintiff to adduce further evidence on the question of surrender and directed the trial Court to send additional evidence recorded after remand to the lower Appellate Court who had kept the appeal in his file. After remand the plaintiff adduced further evidence and the lower appellate Court has decreed the plaintiffs suit against which the present second appeal has been filed.

( 5 ) BOTH the Courts below have found that the lease-deed (Ex. 5) executed by the landlord (defendant No. 7) in favour of the plaintiff is a genuine and valid lease. This finding is not controverted before us. But this alone is not sufficient to grant a decree in favour of the present plaintiff. The basis of the plaintiff's title is, however, the surrender by the recorded tenants in favour of the landlord. Unless the landlord was competent to lease out the land on the extinction of the tenancy right of the defendants, the plaint