S.P Mohapatra, J.:— 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 Sambalpur 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 of the Cr PC, dated 5-3-1951, arising out of proceedings under S. 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 7-6-1938, 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 I 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 S. 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 of the Cr PC, which terminated in an order under Section 146 of the Cr PC, 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 or 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 decried the plaintiff's 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 plaintiff cannot have any title to enforce in a suit foe ejectment of the present appellants who admittedly were the tenants in respect of the holdings. The subject-matter of the present appeal is pointedly this aspect of the case.

6. Undoubtedly it is for the plaintiff to prove, the factum of surrender by the recorded tenants 5 in favour of the landlord. The judgment of the lower appellate Court, I will mention at the outset, has been vitiated on more than one ground, one of them being that he has made use of an admission made by the present defendant No. 1 in the previous mortgage suit brought by the landlord against the mortgagee, that is, title Suit No. 23 of 1939. The present defendant No. 1 was not a party to the previous mortgage suit. It was only as between the present defendant No. 7 and the mortgagee.

7. Defendant No. 1 of course, as it appears from the judgment in that suit, figured as a witness. The lower appellate Court from a recital in that judgment has laid great importance to the fact that the surrender was there admitted by the present defendant No. 1 Dasarathi who figured as a witness in the previous mortgage suit. The deposition of Dasarathi is not on record of this case. It is too well known proposition that an admission can be used as against the party making it only when the admission is taken as a whole.

8. A mere recital in the judgment that the present defendant No. 1 admitted surrender cannot be admissible as an admission to be used against the present defendant No. 1 unless the entire deposition is placed on record. The Court must be in a position to know in what setting a statement was made of that nature and whether it was a qualified statement, or that the statement contained a further explanation also in the deposition etc. Unless the Court be in a position to construe the deposition as a whole, the recital in the judgment that Dasarathi admitted the surrender cannot be used against him.

9. We will now come to other evidence regarding the surrender. It is important to note at the outset that the original deed of surrender is not on record. Ex. 3 is only the certified copy of it. A point was taken all through and is being reiterated here by Mr. P.C Chatterji arguing the appeal on behalf of the appellants that the certified copy — the secondary evidence — is inadmissible as the non-production of the original document has not been satisfactorily established. The learned lower appellate Court in his judgment under appeal has, however, found that the original was lost on the evidence of P.W 6, the landlord-defendant No. 7 who was examined only after remand. His finding is to the effect:

“As the document had been filed in the suit (mortgage suit) and perhaps he had not taken return of it at the time of the lease, he could not hand over the document to the plaintiff along with the lease deed. Subsequently after having taken return of it he must have found it to be of no utility to him and hence not preserved it carefully. At any rate I am inclined to believe the alleged loss of the original deed of surrender.”

10. It is to be examined how far this finding can be accepted as landing on us being in accordance with law. We may note at the outset even though in the plaint it is made clear the plaintiff relies upon tin's deed of surrender as the very foundation deed in support of his title, there is no mention as to its loss or the circumstances explaining its loss. The plaintiff in his deposition in Court also does not make any statement as to its loss or tile circumstances why the original document is not produced. His own statement on the point is:

“The Gountiya obtained the suit lands by a registered deed of surrender and I was shown the deed.”

11. There is no explanation, however, why knowing full well that the deed is the foundation of his title he did not catch hold of the deed of surrender. The surrender, according to the plaintiff's case, was in respect of the entire holding which again was leased out in favour of the plaintiff. The landlord would not stand in need of it any more, indeed except for bringing the suit for redemption.

12. But the redemption suit was finalised and possession was delivered to the landlord in the year 1940, nearly two years prior to the lease. So at the time of the lease the landlord, it is manifest, did not require the deed of surrender at all; as such it is certainly to be expected that the plaintiff would be demanding from the landlord, defendant No. 7 to get the deed of surrender in order to annex it to his deed of lease which will be valid only on the basis of the deed of surrender.

13. We will now take up the evidence of defendant No. 7, the landlord. He was not examined at the original stage before remand. He was not even summoned to produce the original deed of surrender even though he was called upon to produce certain other documents. The process calling upon the landlord was not served. He has been examined as P.W 6 after the order of remand. In his examination in chief his only statement is “The said deed (deed of surrender) was lost in 1946”. There is no other statement explaining how and under what circumstances it was lost. In cross-examination, however, he states:

“I gave the original of Ex. 3 to some one in my house to keep when I was going out in a hurry. I cannot say who else was present when I gave the said document to keep. The document was said to have been given to my wife who died seven or eight days after that occurrence.”

14. What is more significant is another passage in his statement:

“I lodged information at P.S Sohela regarding the loss of the original of Ex. 3. I cannot say if the said fact was recorded in the P.S Station Diary.”

15. No steps had been taken to place on record the Station Diary entry nor the information lodged by the landlord in the P.S We may mention here also that defendant No. 7, the landlord, had filed a written statement supporting the case of the plaintiff in the present suit. In that written statement also there is no account given as to the loss of the original deed of surrender. In this set of circumstances and facts very clearly arising in the case which have not been considered by the lower appellate Court in admitting the secondary evidence, we feel not bound by the finding of the lower appellate Court for the additional reason also that some of the observations made by the lower appellate Court are conjectural. He has observed:

“As the document had been filed in the suit and perhaps he had not taken return of it at the time of the lease, he could not hand over the document to the plaintiff along with the lease deed.”

16. As we have already mentioned, by the time of the lease the mortgage suit was long disposed of. There is no account given either by the plaintiff or by the landlord as to when the deed of surrender was taken return of or why exactly the original was not handed over to the plaintiff. In the absence of such a statement on record the lower appellate Court has gone wrong in law in admitting the secondary evidence on the basis of a conjecture:

“Perhaps he (the landlord) had not taken return of it at the time of the lease and so he could not hand over the document to the plaintiff along with lease deed.”

17. But that apart even the mere production of the certified copy and acceptance of it by the Court as a piece of secondary evidence is not proof of the fact of surrender unless at least its due execution is proved by satisfactory evidence. I am to reiterate that the defence had been taken that there was no surrender and further diere was no execution of the deed Looking to the signature of defendant No. 1 in the written statement filed in Court I feel convinced to observe that defendant No. 1, who is alleged to have been the Karta of the family at the time of the surrender, knows nothing more than merely signing his own name.

18. Defendant No. 2 in these proceedings from the very beginning has been declared as an insane and he was represented by a pleader guardian. Moreover, as it appears manifestly, the alleged surrender is in respect of the entire holding with a large area of 25.84 acres, its rental being only an insignificant sum of Rs. 6/12/-. In this background, it was incumbent upon the plaintiff to adduce sufficient evidence acceptable to Court as to the due execution of the document, the certified copy of which is Ex. 3.

19. It should be borne in mind that defendants 1 to 5 are Chamars by caste, that is, they are untouchables and belong to the lowest rank in the society. The plaintiff, in order to enforce a document against such persons, and particularly the executants being illiterate, has got to prove to the satisfaction of the Court that the deed of surrender was really executed properly after the executants were fully aware of the nature and contents of the transaction. The evidence to that effect is hopelessly wanting. The plaintiff has not examined either the scribe or any of the attesting witnesses nor even the identifier before the Sub-Registrar.

20. Mr. Mohapatra, appearing on behalf of the plaintiff-respondent, wants to rely upon the endorsement made by the Sub-Registrar to the effect that the execution was admitted. But in order that any value would be attached to this endorsement there ought to be a preliminary proof that in fact defendants 1 and 2 did present the document before the Sub-Registrar and that they did admit the execution. That is to say the evidence of the; identifier is very essential before any importance can be attached to the endorsement made by the Sub-Registrar.

21. Apart from the production of the certified copy of the original deed, there is also no other contemporaneous evidence placed on record as to the factum of surrender that in fact defendants 1 and 2 had surrendered the entire holding. This part of the evidence would have probabilised the position that the document was executed and that it was a bona fide transaction of surrender.

22. The learned lower appellate Court has gone wrong in law in having ignored these aspects of the case before coming to the finding that there was a surrender which made the landlord competent to grant a lease in favour of the plaintiff. The suit brought by the landlord for redemption of the mortgage transaction securing a paltry sum of Rs. 80/- or the payment of rent by the plaintiff subsequent to his lease has no bearing as to the proof of a bona fide transaction of surrender. On the contrary, absence of satisfactory evidence of non-production of the original appears to be a very important circumstance against the bona fide transaction of surrender.

23. We have yet another substantial ground on account of which the plaintiff's suit should have-been dismissed. The ground arises out of the remand order of the lower appellate Court. In the remand order of the same Judge dated 28th July, 1953 the direction was to the effect

“The Munsif to record further evidence in proof of surrender, its validity, evidence, if any, to disprove the same and send the records back to-this Court within three months.”

24. It is to be mentioned, at the trial stage, the plaintiff had not taken any steps whatsoever for the production of the deed of surrender. He had summoned the landlord to produce the certified copies of other documents but not the deed of surrender. The process, as I have indicated above, was not served and the plaintiff did not take any further steps. The learned District Judge, who remanded the case, was cognizant of the position when he writes:

“It was open to the plaintiff to prove that it was so presented before the Sub-Registrar by Dasarathi and his sons by examining at least one of the witnesses who identified them before the Sub-Registrar but no such attempt had been made.”

25. In spite of these features the learned lower appellate Court remanded the case without being satisfied as to any reason, far less any sufficient cause, that prevented the plaintiff to take proper steps for placing material evidence on record. The plaintiff, as is indicated on the very plaint itself, was fully aware that the transaction of surrender was the very foundation of his title; but nevertheless he had not taken any steps to prove it. It is very well known that it is certainly not the function of the Court to fill up the latches or the lacuna, in proof of the case of the party unless he is fully satisfied that there was sufficient reason which prevented the plaintiff from taking proper steps to prove his case. The Court cannot place himself in the position of an adviser to a parry.

26. The suit was instituted on 20th September 1951 and the judgment of the trial Court was pronounced on 30th July, 1952. The plaintiff bad, therefore, nearly a year's time to take steps and there, being no sufficient cause shown by the plaintiff as to why he did not take proper steps, the learned District Judge in remanding the case had exercised his jurisdiction with very serious and material irregularity on account of which the order of remand has been vitiated and is therefore if legal.

27. The last contention made by Mr. Mohapatra is that even if it be held that there is no sufficient proof of an express surrender, the facts proved sufficiently make out a case of an implied surrender as contemplated under the provisions of Section 35 of the cl. (4) of the C.P Tenancy Act. The clause runs thus:

“Any tenant other than an absolute-occupancy tenant who leaves his holding uncultivated and the rent of it unpaid for a period of two years shall, at the expiration of that period, be deemed to have surrendered the holding.”

28. On a plain reading of the plaint, it appears quite clear that the plaintiff based his claim on the footing of an express surrender which was embodied into a registered document. Mr. Mohapatra, however, has drawn our attention to paragraph 5 of the plaint wherein the plaintiff also states that the landlord possessed the suit land for more than two years and thereby perfected his right as against the original tenants and their heirs who were out of possession and were not paying rent since the date of surrender.

29. This has to be read in continuation of the allegations made in paragraphs 3 and 4 where the clearest assertions are that on the basis of the express surrender made by the recorded tenants by virtue of a registered deed of surrender dated 7th June, 1938, the landlord had perfected his title and thereafter he recites the history of the case. There is no dispute that in fact there is no specific alternative plea of implied surrender as such. That apart the evidence on record is clearly wanting to prove the case of an implied surrender.

30. The trial Court who had discussed the evidence adduced on behalf of the defendants including the oral evidence of several witnesses had come to the finding that the defendants were exercising physical acts of possession ever since 1933. It also appears clearly from the records that in 1947 there were proceedings under Section 145 of the Cr PC in which the defendants agreed not to interfere with the possession of the plaintiff; but immediately thereafter there was another proceeding under Section 145 of the Cr PC at the instance of the defendants themselves which terminated in the order under Section 146 of the Cr PC directing the parties to have their rights decided in a Civil Court.

31. The finding of the lower appellate Court on the question of implied surrender is also vulnerable in second appeal inasmuch as he has not discussed the evidence of the defence witnesses who were believed by the trial Court on the question of actual possession. Payment of rent by the plaintiff or mutation of his name is no proof of actual possession. P.W 6, the landlord, does not speak a single word about implied surrender. A fair reading of the case of the plaintiff inclines me to observe that he was prepared to stand or fall by the surrender evidenced by the deed. In conclusion the appeal succeeds and is therefore allowed. The judgment and decree of lower appellate Court are set aside and the plaintiff's suit is dismissed with costs throughout.

S. Barman, J.:— I agree.

V.R.B

32. Appeal allowed.