DAVE, J.

This is a first appeal by the plaintiff, Poonamchand, in a suit under Order XXI Rule 63 of the Civil Procedure Code.

2. The facts giving rise to it are that defendant No. 3 Sunderlal and No. 4 Daudas had a decree against defendant No. 5 Gulab Das, and in execution of that decree, they got an attachment of a house situated in Bhootron-ka-Vas at Pokaran. The description of that property is given in para No. 2 of the plaint and need not be repeated here. The plaintiff presented an objection petition under Order XXI, Rule 58 of the Civil Procedure Code. The decree-holder contested that application on the ground that the house originally belonged to defendant No. 1 Motilal, that he and his mother Mst. Dhapi defendant No. 2 had sold it to Sangidas Beharial, who were father and grandfather respectively of the judgment-debtor, Gulabdas, defendant No. 5. The plaintiffs objection-petition was dismissed. Thereafter the attached property was put to auction and pruchased by defandant No. 6 Hemraj.

3. The plaintiff and edfendants Nos. 1 and 2 related to each other. They come from a common stock one in order to under-stand the case it would be proper to give their pedigree-table which is not in dispute. It is as follows: - Hemraj Akheram Bulidan Rampratap Jeetmal Bholaram Poonamchand (P.) Premsukh Madangopal Mt. Dhapi (widow) (D. 2) Srikishen Motilal (D. 1).

4. The plaintiffs case in the trial court was that although the disputed properly was once the joint-family property of Akheram, Bulidan and Rampratap, it came to his share on a partition in the family and therefore he was its sole owner and that it was also in his exclusive possession. It was averred that defendant No. 1 Motilal had no right over the property and that he or his mother, defendant No. 2, had no authority to dispose it of. It was further alleged that the sale of the property by defendants Nos. 1 and 2 in favour of the ancestors of defendant No. 5 was fictitious, or at any rate void against him. It was therefore prayed that a declaratory decree be passed to the effect that the plaintiff is the rightful owner of the property and that it is not liable to attachment and sale in execution of the decree of defendants Nos. 3 and 4. Four defendants, namely Nos. 1, 2, 4 and 5 did not enter appearance in the trial court and, therefore the suit proceeded against them ex-parte. Defendants Nos. 3 and 6 contested the suit. Their defence was that the partition between Jeetmal, Bulidan and Rampartap had taken place in Svt. 1924 and the house in dispute had came to Ramparataps share. Defendant No. 1 inherited it from Ramparatap and therefore, he was its rightful owner. If was averred that defendants Nos. 1 and 2 had sold this house to Beharilal Sangidas, ancestors of defendant No. 5 and, therefore, defendant No. 3 had a right to get the said house attached and sold in execution of his decree against defendant No. 5.

5. It may be remarked here that the said plaint and the written-statement were filed in the court of the Judicial Officer. Thikana Pokaran. The plaintiff had valued the house in dispute at 700/ -. The defendant raised an objection that the suit was undervalued. The Judicial Officer, Thikana Pokaran, came to the conclusion that the house was valued at Rs. 25c0/- and since it was beyond his jurisdiction to hear the suit, it was transferred to the court of the District Judge, Jodhpur The learned District Judge then framed the following two issues : - 1 Whether the alleged house is in the ownership and possession of the plaintiff and is not liable to attachment and sale in execution of the decree in case No. 3 of 1937 38 2. What relief the plaintiff is entitled to

6. After recording the evidence of both parties, the learned Judge found that there was a partition in the plaintiffs family in Svt. 1924, that the house had gone to the share of Rampratap, that it was sold by defendants Nos. 1 and 2 to the ancestors of defendant No. 5 and, therefore, it was liable to attachment and sale in execution of the decree of defendants Nos. 3 and 4 against him. The court also held that the plaintiff was unable to prove his title to the property and, therefore, the suit was dismissed. The plaintiff filed an appeal which was heard by a Bench of this Court. It was found by the learned Judges that the house was joint family property that the plaintiff had an undefined share therein and that he was in possession of a part of the house. The appeal was therefore allowed and it was declared that the whole house could not be attached in execution of the decree.

7. Against this decision, a review application was filed by defendant No. 4. The learned Judges, who heard the review application, found that there were two errors apparent on the face of the record and. therefore, the application was allowed and the appeal was fixed for re-hearing. This is why this appeal has came before us again for decision.

8. Now a perusal of the pleadings and the statements of the contesting parties shows that it is common ground between them that the house in dispute was at one time the joint-family property of the ancestors of the plaintiff and defendant No. 1 Motilal. It is also undisputed that partition of the ancestral property had taken place long long ago and the house is on longer joint-family property. According to the plaintiff, it came to his share in Svt. 1957 when the first defendants grandfather Rampratap gave it away to him. On the other hand, the defendants contention is that there was partition is Svt. 1924 between the grandfathers of the plaintiff and defendant No. 1, namely Bulidan Rampartap, and the house came to the share of Rampratap, grandfather of defendant No, 1.

9. The first question which, therefore, confronts the Court for determination is whether the house had gone to the share of the plaintiff or to that of Rampratap. On this point, the plaintiff has not produced any document evidence. He has remained content by examining himself. The defendant on the other hand, has produced two documents Ex. D. 1 and D. 2 which are said to be partition deeds. We have gone through the plaintiffs statement and find that it is impossible to place any reliance on it. He was examined on 13th of February, 1948. On that day it was stated by him that it was in Svt. year 1957 that Rampratap had given this house to him as his share. At that time, he gave his age as 45 years or 55 years. The first figure was originally "4" and it has been altered so as to look like "5". It is difficult to say now who has made this alteration. If the appellant was 45 years of age on the date of his statement, he was not born in the Svt. year 1957. But even if it be taken that he was 55 on the date of his statement, he would be only seven years of age at the time of the alleged partition. It is difficult to believe that the plaintiff would remember a partition which is said to have taken place at the age of seven years. The plaintiff has not produced any document evidencing the partition in Svt. year 1957. If Rampratap was so generous to him, then he would have also given some document in writing in his favour. Then, the plaintiff has not mentioned who was his guardian at that time. It cannot be believed that Rampratap had delivered the property to the plaintiff at the age of seven years without a guardian. The mere statement of the plaintiff, under the circumstances, is altogether unbelievable and the story put up by him appears to be a myth. On the other hand, Ex. D. 1 produced by the respondents is a partition deed between Jeetmal, Bulidan and Rampratap, ancestors of the plaintiff and defendant No.

1. Similarly, Ex. D. 2 is counterpart of Ex. D. 1 and it was executed by Rampratap and Bulidan, Both these documents make it quite clear that there was a partition in the Svt. year 1924 and the house in dispute came to the share of Rampratap, grandfather of defendant No.

1. The trial court has presumed these documents to be genuine under sec. 90 of the Indian Evidence Act s;nce they are much more than thirty years old. Ex. D. 1 shows that it bears an endorsement of the court of Thikana Pokaran dated 3rd of February, 1906, since it appears to have been produced in that court in some suit This document bears another endorsement dated 28th of July. 1928, of the District Court No. 1 Raj Marwar. This clearly shows that the document was in existence as early as the year 1906 and there is no doubt about the fact that it is more than 30 years old. Learned advocate for the appellant has tried to urge that even though this document is more than 30 years old, it should not have been presumed to be genuine under sec. 90 because it was not produced from proper custody. This argument had found favour with appeal on 31st of July, 1950, We have given due consideration to this matter and we think that this argument is not correct. The explanation to sec. 90 of the Evidence Act which deals with proper custody, runs as follows : - "explanation : - Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstance of the particular case are such as to render such as origin probable. "

10. Learned counsel for appellant has urged that if these documents were produced by defendants No. 1 and 2, it could by said that they were in proper custody; but since they have been produced by the decree-holder defendant No. 3. his custody cannot be said to be proper. This argument is not tenable because defendant No. 3 has come into the witness-box and stated on oath that he had got these documents from Sangi-Das, father of defendant No. 5. The witness has stated that the present house was once attached in execution of a decree of one Kishniram. At that time, Sangi Das had filed an objection petition. The witness had helped Sangi Das in engaging a Vakil and at that time, he had got these documents from him, and since then they were in his possession. This explanation given by the witness is not unnatural or unbelievable. Sangi Das had purchased the house from defendants Nos. 1 and 2 and naturally these documents should come in his possession from defendants 1 and

1. If the witness was helping Sangidas in the previous case, there was nothing extraordinary if he was entrusted with these documents. The second part of the explanation set out above shows that custody is not improper origin. In the present case, defendant No. 3 has proved by his own statement on oath how he had come in possession of these documents. According to this statement, the origin of his possession is quite legitimate. There is no evidence to the contrary to show that his possession had an illegitimate origin. The legitimacy of the origin of the plaintiffs possession also finds support from illustration (c) to sec. 90 which runs as follows : - " (c) A. a connection of B, produced debts relating to lands in Bs possession which were deposited with him by B for safe custody. The custody is proper. " In the present case also, defendant No. 3 has stated that these documents were given to him by Sangidas and, therefore, his custody cannot be said to be improper, The trial court, therefore, did not commit any error in raising a presumption about these documents under sec. 90 of the Indian Evidence Act. As shown above, these documents were twice produced in the courts, in the years 1906 and 1928. The plaintiff has not given any evidence to show that any doubt was cast on them ever before. Under the circumstances, the trial court rightly held that partition between the ancestors of the plaintiff and defendant No. 1 had taken place as early as Svt. 1924 and the house in dispute had gone to the share of the first defendants grandfather.

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1. Learned counsel for the appellant has next urged that his client has produced very reliable evidence to show that he was in possession of the property from Svt. 1982 and, therefore, the trial court ought to have decreed his suit only on the basis of his possession. According to learned counsel, it is not necessary for plaintiff to prove his title in a case under Order XXI, Rule 63. In support of his argument,he has referred to the case of Kalachitti Bhimavva vs. Gaurikara Nagappa (l) and drawn our pointed attention to the following observation: - "there is one distinction between what has to be proved in a suit under O. 21, R. 63 and that in a suit under O. 21, R. 103. Civil Procedure Code. So far as the class of suits contemplated by the latter provision is concerned, the Code lays down affirmatively that the plaintiff should prove his title. So far as suits under 0 21, R. 63 are concerned all that the Code requires is that the plaintiff should prove the right to possession. "

12. We have given due consideration to this argument and we find it difficult to agree with this view. Order XXI, Rule 63 runs as follows: - "63. Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive. "

13. It is clear from the wordings of this rule that the plaintiff, who files a suit, has got to establish "the right which he claims to the property in dispute. " When any claim is preferred or an objection is made under 0. 21, R. 58 C. P. C. to the attachment of any property, then, according to Rule 59, the claimant or objector is required to adduce evidence to show that at the date of the attachment, he had some interest in, or was possessed of, the property attached. Then Rule 61 lays down that if the court,which makes the investigation, is satisfied that the property at the time of attachment was in the possession of the judgment-debtor as his own property and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant paying rent to him, the court should disallow the claim. It is clear from Rule 61 that the court should disallow the petition of the claimant or the objector when it satisfied that at the time of attachment, the property was in the possession of the judgment-debtor as his own property and not on account of any other person, or that if it is in the possession of some other person, his possession is on behalf of the judgment-debtor. Under the circumstances, when the claimant files a suit under 0. 21, R. 63, he has got to establish either his title to the property; or if he relies only on his possession, that he has to establish that his possession is in his own right. In such a suit, if the other party is able to the establish the judgment-debtors title to the property, then mere possession of the plaintiff would not enable him to achieve any success in his suit. Other XXI, Rule 63 does not contemplate that the plaintiffs suit should be decreed merely on the basis of possession even though the title in the property is proved in the judgment-debtor. In other words, if it is proved that the title of the property vests in the judgment-debtor,then the plaintiff cannot be successful merely on the ground of possession unless he is further able to establish that his possession was adverse to the judgment-debtor and that he has perfected his title on the basis of adverse possession.

14. We may point out that in an earlier case. Nelluri Venkayya vs. Devabhaktuni -Raghavayya (2), another Judge of the same High Court made the following observation - This Court has held see (1933 Mad. 328 (1) that the terms of 0. 21,r. 63 are wide enough to include a suit based upon title. The point to be observed is that the rule does not specifically say either that it is possession on the date of the claim proceedings that should be established or that it is the title of the claimant that should be established. The words are "the claimant may institute a suit to establish the right which he claims to he property in dispute" In order to prove that he has a right to the property in dispute a consideration of his title as well as of possession will be relevant. The two questions cannot be separated one from the other, for, in finding out who is in possession of the property the question as to who has title to it will be very relevant because ordinarily possession will follow title. I am mentioning this only to illustrate the statement that the terms of the order are wide enough to include title as well. The lower Court was therefore wrong in leaving the question of title open for another litigation when it was specifically raised in the case, and, as I have said, found upon by the Court on remand. "



15. In the case of Swamirao Sriniwas Parvati vs. Bhimabai Padappa Desai (3) which was under 0. 2. 1, R. 63, it was observed as follows; - "once the plaintiff had proved that at any rate half the house belonged to his judgment-debtor, then the only person entitled to dispute his right to attach that house would be a person who claimed that the house belonged to him. Any other person as an outsider, could have no title to interfere in attachment proceedings by urging that as a matter of fact the property attached not belong to the judgment-debtor. I should go so far as to say this, that a claimant in attachment proceedings must prove that he himself is the owner of the attached properly. If he fails to do that, then he has no further interest in the proceedings. "



16. Similarly in another case Udho Das S/o Lalchand vs. Hazi Khair Mohammad (4) it was observed as follows: - "since the suit is one to set aside the decision of an executing Court under 0. 21, R. 63, Civil P. C. , it is for the plaintiff to prove his title; and if it is found that there is no conclusive evidence on the question of title the plaintiffs suit must fail. "



17. In the present case, the respondents have proved that the title of the house vested in Rampratap, grandfather of defendant No, 1 after the partition of Svt. 1924 and therefore, the appellant cannot get a decree merely on the basis of possession unless he is further able to prove that his possession was adverse to defendant No. 1 and that he had perfected his title on that basis.



18. We have now to see whether the plaintiff has been able to prove his possession and also his title on that basis. In this connection, the learned counsel has, in the first instance, referred to three documents Exs. P. 1, P. 2 and P. 8 which are said to be rent-notes executed by the appellants tenants. Ex. P. 8 has not been proved and, therefore, we cannot take it into consideration. Ex. P. l is a rent-note executed by one Jogidas on Fagan Vad 1, Svt. 1994. P. W. 1 Laxminarain has stated that it was executed by Jogidas in his presence and he recognised his signature. It is therefore proved that this document was executed by Jogidas in the appellants favour. It is not denied even by the respondents that Jogidas ha i remained in occupation of this house as a tenant for several years; but their contention was that Jogidas was put in possession of the property by Motilal, defendant No. 1, and it was only by fraud that the appellant got a rent-note executed by him. The appellant has produced three other documents Exs. P. 9. P. 10 and P. 1

1. Ex. P. 9 is a certified copy of a judgment in a case filed by the appellant against Jogidas for ejectment and arrears of rent. It shows that the appellant had got a decree for ejectment against Jogidas and also for Rs. 312 for arrears of rent on 14th of August, 1939. Ex. P. 11 is a copy of the order sheet in the file relating to the execution of the said decree. The order-sheet dated 29th of April, 1944 shows that Jogidas was directed to hand over possession of the house to the appellant. Then another order dated 6th of May, 1944 shows that the appellant had produced a receipt showing that he had obtained possession of the house and, therefore, the file was consigned to record. Ex. P. 10 is a copy of the receipt filed by the appellant showing that he had obtained possession of the house. These documents, no doubt, show that the appellant had obtained a decree against Jogidas on the basis of tenancy and got possession of the house through the court Respondents learned counsel has urged that defendant No 1 or defendant No. 5 were not parties to that case and. therefore, the decision of the courts in the said case was not binding upon them. It is contended that since defendants No. 1 and 5 were living outside Pokaran, the appellant had done all this in their absence in a vain attempt to establish his own right over the property, it has been pointed out the judgment Ex. P. 9 itself shows that Jogidas had denied the fact that he had obtained he house on rent from the appellant. On the other hand, he had taken the specific plea that he had got the house on rent from Sangindas father of defendant No. 5, and that the appellant had sot the rent-note executed by him while he was in a state of intoxication. He has further referred to a certified copy of the statement of Jogidas and urged that in this statement also Jogidas had denied that he was a tenant of the appellant. It is contended that Jogidas, on the other hand, had clearly stated that the house belonged to Sangidas and that he was kept as a tenant by Motilal, defendant No

1. It is further urged that this statement was given by Jogidas when he was called by the appellant as his own witness. Learned counsel for the appellant his raised an objection that this document is not admissible in evidence under sec. 33 of the Indian Evidence Act because Jogidas was examined as the appellants witness and he had no right and opportunity to cross-examine him. In support of his argument, he has referred to the following commentary appearing in Monirs Principles and Digest of the Law of Evidence (Third Edition) at page 35

1. "similarly, a party has no right or opportunity to cross-examine his own witnesses, and it seems that the evidence given in a farmer proceeding by the witnesses of a party with, in a subsequent proceeding, be inadmissible against the party on whose behalf the witnesses appeared in the first proceeding Thus, where in proceedings under sec 145 Cr. P. Code, U. appeared as a witness for the first party, his deposition was, in a subsequent proceeding in which the first party was a defendant, held inadmissible against the first party. " In appears that this commentary is based on the observation made by learned Judges of the Calcutta High Court in the case of Brija-ballav Ghose vs. Akhoy Bagdi (5). We have gone into the case and we find that in that case an objection was raised by the appellant wish regard to the admissibility of the previous deposition of one witness, viz. Umapada, Learned Judges found that his statement was not admissible firstly, because the identity of the person who gave the deposition was not proved. Then it was further found that none of the requirements of sec. 33 of the Evidence Act was satisfied because the witness himself was alive. Then lastly in passing, it was also observed by the learned Judges as follows: - "umapada had been examined in the proceedings under sec. 145 as a witness on behalf of the defendant was the first party therein. The defendant had no opportunity nor the right to cross-examine Umapada; and in these circumstances it is impossible to hold that this proviso (second proviso to sec. 33) has been complied with in the present case. " These observations no doubt lend support to the argument of the appellants learned counsel but they do not seem to be free from doubt. Sec. 33 of the Evidence Act runs as follows; - 33. Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense witch, under the circumstances of the case, the Court considers unreasonable: - Provided - that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation: - A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the section. "

19. The point in issue relates to the second proviso appearing in the above section. A plain reading of the wordings of this proviso seems to mean that in order to make the evidence of a witness in a previous case admissible, the adverse party in the first proceeding should have the right and opportunity to cross-examine that witness. This proviso therefore obviously protects the right of the adverse party in the first proceeding" and not the right of the person who produce and examines the witness. The adverse party in the first proceeding would be the party against whom the witness is produced in the previous proceeding and not the person who produces the witness himself. If the interpretation which is sought to be put by the appellants learned counsel is accepted, it would mean that the person producing the witness in the first proceeding will have the advantage of using the evidence of that witness in a subsequent proceeding between the same parties, while the adverse party in the first proceeding would be deprived of using the same statement if it goes in its favour.

20. Learned counsel wants to read the proviso as if it ran as follows - "the adverse party in the subsequent proceeding had the right and opportunity to cross-exile the witness in the first proceeding. " If the legislature had drafted the proviso in this manner, that the court could have no option but to interpret is as it would have stood. But when the words "in the proceeding" have been used just after the words "adverse party" and not at the end of the clause, then it does not seem proper for the courts to change the sequence of words to suit the interpretation. The question to be considered is as to what was meant by the words"the adverse party in the first proceeding". Ordinarily this would mean that if the witness is produced by a complainant in a previous criminal proceeding or by a plaintiff in a previous civil proceeding then the adverse party in the first proceeding would be the accused or the defendants as the case may be. If on the other hand, the witness is produced by the accused or the defendant in the first proceeding, then the adverse party would be either the complainant or the plaintiff, according as it is a criminal or a civil proceeding. It may be pointed out that the second proviso should be read in the context of the first proviso. The first proviso clearly lays down that the first proceeding in which the witness was examined must be be ween the same parties or their representatives in interest. This means that if the parties or their representatives in interest are not the same in both the proceedings, the provisions of sec. 33 would not be attracted. Now let us examine whose interest the second proviso seeks to protest. It seems to lay down that unless the adverse party in the previous proceeding has the right and opportunity to cross-examine the witness, his evidence should not be admissible in a subsequent proceeding between the same parties. In other words, it lay down that the statement of a particular witness should be tested by both the parties in order to make it admissible in the later proceeding. The object of this proviso seems to protect those parties against whom the previous proceedings might have gone ex parte or those who could have no right or opportunity to cross-examine them for some reasons. It would also protect co-plaintiffs or co-defendants who may not have the right or opportunity to cross-examine the witness produced from their own side. But it seems rather stage that the person who himself examines a certain witness should be permitted in a subsequent proceeding to raise an objection that the statement should not be admitted because he had no right or opportunity to cross-examine him. It also seems unfair that a person producing a witness in the previous proceeding should be able to utilise the statement in a subsequent proceeding, while the adverse party should be denied the right of using the same statement against the party producing the witness in case such a deposition goes in its favour. it may be urged that if a witness produced by a party in the previous proceeding goes hostile to him, his interest in the subsequent proceeding is likely to be affected; but it may be pointed out that sec. 33 does not enjoin upon the court that the statement of such a witness must be believed. This section only deals with relevancy. In other words, it only makes the statement of such a witness admissible in evidence. It would always be open to the person against whom the statement is produced to show that it should not be believed for reasons given by him. In the present case, this witness was produced and examined by the plaintiff himself in proceeding taken by him under Order XXI, Rule

85. The previous proceeding was between the same parties. The witness was cross-examined by the adverse party in the previous proceeding namely, the defendant. If the evidence of this witness were favourable to the plaintiff, he would have certainly produced it himself. According to learned counsel that could not be objected to under the second proviso,but now because the same evidence if sought to be utilise by the defendant, an objection is raised that it should not be held admissible. This is obviously unjust. If the wordings of the second proviso were as the learned counsel wants it to be read, then it could be interpreted in that manner; but the words "in the first proceeding" follow soon after "the adverse party" and therefore there is no reason why they should be interpreted in that way.

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1. Next, even if it be assumed that this statement is inadmissible in evidence, it does not advance the case of the appellant. In the first place, Ex. P. 9 is not binding upon the respondents since they were not parties to it. Then the appellants has not produced any evidence to show that the house was in his possession from Svt. 1957 to Svt. 1944 when Ex. P. 1 was executed. On the other hand, the respondent has produced a certified copy of a judgment dated the 18th of January, 1917 (equivalent to Svt. 1973) in a case between the appellant and defendant No. 1 relating to the house in dispute. This judgment shows that the appellant had filed a suit against defendant No. 1 in the court of Judicial Officer, Thikana Pokaran. It was alleged by him that on 22nd of January, 1916 defendant No. 9 had put a lock on the house and, therefore, it was prayed that it should be got opened. That suit was dismissed on 18th of January, 1917, and the appellant was directed to file another suit on the basis of his title if he so desired. This document clearly shows that the appellant was not in possession of the house then. The appellant has not led any evidence to show how he came into possession of the house thereafter. It is suggested by appellants learned counsel that it is likely that defendants Nos. 1 and 2 might have removed their lock from the house and allowed the appellant to take possession of the same. But this is only a conjecture and in the absence of any evidence, such a presumption cannot be made in the appellants favour. When the appellant was unable to get the lock opened through the court, then the presumption would be that the house continued to be in the possession of the other party. This judgment supports the defendant contention that the appellant had later on obtained rent-note from Jogidas just to create evidence in his favour and no importance should therefore be attached to it. In our opinion, the appellants possession of the property can at best be accepted from Svt. 1994, (which is equivalent to 1937) when Ex. P. 1 was executed. The present suit was filed in the year 1944 and, therefore, the appellants possession for this short period cannot held him to establish his right over the property. Under the Marwar Limitation Act, 1945, the period prescribed for perfecting title on the basis of adverse possession under Arts. 142 and 144 was 20 years. There is also nothing on the record to prove ouster to the knowledge of defendants Nos. 1 and 2 before the suit against Jogidas was filed. The appellant has thus completely failed to show that he was in adverse possession of the property for 20 years.



22. Learned counsel has also referred to Ex. P. 2 which is said to be a rent-note executed by the respondent Hemraj. It Appears that this document was not put to him and he was not even asked whether he admitted or denied its execution. This document is written on a plain paper. Such a document can be executed at any time. The appellant was asked as to how long Hemraj remained in possession of the property and how much rent he had received from him. He has not given satisfactory replies to these questions and therefore this document also does not help him in any way.



23. Learned counsel has next referred to the oral evidence produced by the appellant. He has examined three witnesses, namely, Laxminarain Brijmohan and Motilal besides himself. P. W. 1 Laxminarain stated that the appellant live at Aligarh, that he had twice come to Pokaran and stayed into the disputed house. The witness has not given any date as to when the appellant came to Pokaran and how long he stayed in the house. Such a vague statement can be given by anybody at any time and no reliance can be placed upon it. Similarly Brijmohan P. W. 2 has stated that every time the appellant came to Pokaran, he stayed in this house and that the marriage ceremony of his son and daughters also took place there. The witness was thirty four years of age when he was examined and still he had the cheek to say that he was observing the appellants possession for the last 30 years. The statement of this witness has been belied by the appellant himself who admitted in cross-examination that none of his sons or daughters was ever married in the disputed house. That clearly shows that Brijmohanlal is a liar. The statement of P. W. 3 Hotilal is equally vague because he also does not say at what period of time the appellant came to Pokaran and stayed in the house. Thus the oral evidence produced by the appellant is also useless to prove his title or long possession over the property.



24. Appellants learned counsel has also referred to a few other documents which are marked Exs. P.-3 to P.-7. Regarding these documents, it would suffice to say that they are not the original documents. They are only copies. The original documents have not been proved in any manner and, therefore, they are inadmissible in evidence.

25. It was urged on behalf of the appellant that the sale-deeds in favour of Beharilal Sangidas (Ex. D.-l and D.-2) were fictitious. This argument is not tenable. The respondents have produced a sale-deed Ex. D.-7 which is a registered document. It has been proved by the statements of the witnesses D. W. 5 Shivnath and D. W. Rambux. The evidence of these witnesses has not been shaken in any way. The appellant has not produced any evidence to throw any doubt on the sale-deed and we see no reason to disbelieve that it was fictitious. It appears from Ex. D.-4 that Sangidas had obtained a patta of the house on Jeth Vad 7, Svt. 197

1. It has been urged that this patta was obtained by fraud. . There is not much force in this argument also. It appears that defendants Nos.-l and 2 had at first executed a sale-deed in the month of Jeth, Smt. 1971 and Sangidas got the patta thereafter but then it was thought that a registered sale-deed was necessary and, therefore, it was later on executed on 2nd of October, 19

15. The mere fact that another sale-deed Ex. D. 7 was executed and registered in Smt. 1972 (2-10-1915) does not necessarily prove that the sale Smt. 1971 was fictitious or that the patta Ex. D. 4 was also obtained by fraud.

26. We agree with the trial court that the appellant had ot been also to establish his title. Taking advantage of the absence of Motilal and Beharilal Sangidas from Pokaran he managed to get a rent-note from Jogidass from him. But his possession for a small time is not sufficient to establish his right over the property. The house having been sold by drfendants Nos. 1 and 2 to the ancestors of defendant No. 5, defendants Nos. 3 and 4 who were decree-holders against defendant No. 5 had a right to get the propety attached and sold in execution of their decree. The plaintiff suits was rightly dismissed by the trial court and the appeal is also, therefore, dismissed with costs. .