JUDGMENT

1. This appeal arises out of an action for the possession of a plot of land which the plaintiffs claimed to be their property. Their claim was resisted by the defendant, Rahim Bakhsh, but both the trial Court and the District Judge on appeal came to the conclusion that the plaintiffs had proved their title. On second appeal Mr. Justice Scott-Smith held that the plaintiffs had not proved the document relied upon by the District Judge in support of his finding and that there being no other evidence in support of the title, their suit should be dismissed.

2. The plaintiffs have preferred this appeal under Clause 10 of the Letters Patent, and it is contended on their behalf that the document P. 5 has been wrongly excluded from consideration. Now, there can be no doubt that the plaintiffs' ancestor, Dhani Bam, purchased the plots of lands situated at Sarai Rohilla Khan, and the question for consideration was whether the land in dispute formed part of those plots. In order to establish their contention the plaintiffs produced a document P. 5 which is a copy of a sale-deed executed on the 17th April, 1917, by one Matu in favour of Abdul Samad, Abdullah, and Abdul Hamid, by which a building on a plot of land was sold, and in the boundaries given in the deed it is shown that the sites to the east and west of the plot, upon which the structure stood, belonged to the ancestor of the plaintiffs. Now, this document has been rejected on two grounds:

3. (1) that the plaintiffs should have produced the original deed, and that secondary evidence thereof was not admissible under the law; and

4. (2) that they have failed to prove the execution of the deed of which P. 5 is a copy.

5. As regards the first objection, the learned Counsel for the plaintiffs argues that Abdul Samad, one of the vendees, who is a defendant in the case, was called upon to produce the original document, but neither he nor his co-vendees produced it in reasonable time, and the trial Court consequently passed an order allowing secondary evidence of the contents of the deed. The learned Counsel relies upon Clause (c) of Section 65 of the Indian Evidence Act, and contends that the conclusion of the trial Court on the question of the admissibility of secondary evidence could not be disturbed by the appellate Court, more especially when no objection to that effect was taken in the Court of District Judge. There can be no doubt that secondary evidence of a document may be given when the party offering that evidence cannot, for any reason not arising from his own default or neglect, produce the origins) in reasonable time; and it seems that the trial Court was of the opinion that this rule was applicable to the circumstances of the present case. The matter depended upon the discretion of the Court; and, as pointed out by their Lordships of the Privy Council in Hariipria Debi v. Rukmini Debt (1890) 12 Cal. 438, 'the question of the admissibility of secondary evidence is a point proper to be decided by the Judge of first instance, and is treated as depending very much on bis discretion. His conclusion should not be overruled, except in a clear case of miscarriage. We are, therefore, of opinion that the first objection raised to the admissibility of P. 5 cannot be sustained. There is, however, no avidence to prove the execution of the original sale-deed of which P. 5 is a copy. It is urged that the plaintiff could not prove the execution of a document which was not produced before the Court, but we do not think that the difficulty, if any, should relievo the party from the duty which the law casts upon him. The scribe, to whose evidence our attention has been invited, only states that the original deed might have been executed by Matu, but that ambiguous statement cannot be treated as proof of the execution of the document. Mr. Noad, however urges that, having regard to the fact that this objection was not raised in the first appellate Court, his clients should have been given a