Oral evidence of the contents of an unregistered sale-deed is inadmissible unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is (or to his attorney or pleader), such notice to produce it as is prescribed by law, and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case.

S. K. RAY, J.

( 1 ) THIS second appeal is by defendant No. 2 from the reversing decision of Shri n. P. Mohapatra, Subordinate Judge, Sambalpnr, in Title Appeal No. 58/8/12 of 1966-67 decreeing the suit.

( 2 ) THE plaintiff filed the suit for eviction of defendant-1 from the suit-house standing on plot No. 1786/2519, recovery of possession and for arrears of rent and damages, and alternatively for declaration of right, title and interest and recovery of possession. This plot measuring six decimals admittedly stood recorded in the names of four tenants. Two of them, namely, Hari Shankar and santosh Barkk sold it to the plaintiffs by an unregistered sale-deed in 1953 for a consideration of Rupees 200/-, Subsequently to this purchase, the plaintiffs constructed a house thereon and were possessing the same. Defendant-1 was inducted as a monthly tenant in respect of the suit-house in September, 1982, on a monthly rent of Rs. 5/ -. Defendant in collusion with defendant-2 subsequently defaulted in payment of rent from January, 1963. Defendant-2 is an ex-gountia. Plaintiffs, therefore, sent notice of suit to defendant-1, but defendant-1 paid no heed to it. Hence the present suit was filed for the aforesaid reliefs.

( 3 ) THE case of the defendants is that the tenants surrendered this plot to the gountia Mafidar-Lambardar, the late Dasarathi Patnaik, father of defendant-2 and it was then taken over by the Forest Department who constructed a forest-restshed thereon. The understanding with the Forest Department was that whenever the house will not be required by them, they would return it to the Gountiamafidar-Lambardar with the constructions, if any, thereon. In 1930 the Deraghar (rest-shed) constructed by the Forest Department was abandoned as no longer required and In pursuance of the agreement the Gountia-Mafidar, father of defendant-2 was placed in possession of the same along with its site. After the death of Dasarathi Patnaik, defendant-2 became the Gountia-Mafidar and also possessed the same and defendant-1 was inducted as a tenant in respect of the same. Thus defendant-2 has title, and defendant-1 has possession as a tenant under the former.

( 4 ) THE trial Court dismissed the suit on finding that the plaintiffs have not been able to prove their possession and title within 12 years of the suit. The Oral evidence of title was rejected as the plaintiffs failed to call for the original unregistered sale-deed, and as no basis was laid for leading secondary oral evidence in proof of acquisition of title by purchase. The plaintiffs plea that they have constructed a house on the suit-plot was not accepted. It further held that the plaintiffs possession has not been proved, and in dealing with this question he discarded Exts. 1 and 2 series.

( 5 ) THE lower appellate Court held that though the plaintiffs had failed to make out a case for secondary evidence in respect of the alleged sale in their favour, the defendants having failed to raise any objection to the leading of such secondary evidence, he came to the finding that the sale in favour of the plaintiffs had been established. He disbelieved the defence case of surrender of the suit-property by the recorded tenants to the Gountia. He also found the plaintiffs to be in possession. In reaching these conclusions, he relied upon Ext. 1, the mutation-entry and Ext. 3 series the rent-receipts. He discarded the defence evidence (Ext. C) in support of the factum of possession by the Forest Department in respect of the suit-property. Lastly, he held that even though the title has not been established, the plaintiffs are entitled to succeed on the basis of their possessory title.

( 6 ) A number of points have been raised by learned counsel for the appellant. The first point is that the learned lower appellate Court was in error in accepting the oral evidence of sale in favour of the plaintiffs and basing his finding of plaintiffs title thereon. According to Section 91 of the Evidence Ac