JUDGMENT : BLAIR, J. 1. This second appeal arises out of a suit for the redemption of a mortgage. The mortgage related to five shops and two houses. The Courts below have both dismissed the suit as far as the two houses are concerned. As to the five shops one was admittedly included in the mortgage, but the Court below has dismissed the plaintiffs' suit entirely. In respect to the one shop its decision is clearly wrong. The Court ought to have found that that shop could be redeemed and should have found what amount was payable by the plaintiffs for such redemption. In regard to the other four shops the Court below has obviously arrived at its conclusion through a misunderstanding of the law. In the Court below the mortgage-deed, which was unquestionably in the possession of the defendants, was not produced, although the plaintiffs had given notice to the defendants to produce it. The plaintiffs, therefore, through their advocate contended that the presumption mentioned in section 114 of the Indian Evidence Act, illustration (g), ought to be applied. The view of the law upon this matter held by the learned Judge can be best shown by quoting the words of his judgment. “The inference is irresistible that the record has been tampered with, and the mortgage-deed is not produced now, because its production would damage defendant's case.” That we take to be an exercise of a discretion conferred by section 4 of the Indian Evidence Act, which renders it a judicial discretion to decide whether the fact which under section 114 may be presumed by the non-production of the document, has been proved by virtue of that presumption. 2. It seems impossible to express in more emphatic language that the Judge in his judgment expresses that the presumption was in the case a sound presumption, in which case he would and should regard the fact as proved. Having, however, admitted the presumption he proceeded in our opinion contrary to law to whittle away the effect of the presumption. 2. It seems impossible to express in more emphatic language that the Judge in his judgment expresses that the presumption was in the case a sound presumption, in which case he would and should regard the fact as proved. Having, however, admitted the presumption he proceeded in our opinion contrary to law to whittle away the effect of the presumption. He goes on to say; “In my opinion the presumption, however strong, is not sufficient to justify a Court in decreeing plaintiffs claim, the direct (oral) evidence in support of which is valueless.” This pronouncement, if it meant anything at all, can in our opinion mean nothing other than this that the presumption, which the Judge had made, would not justify the action of a Court in the absence of confirmatory evidence. This view in our opinion is right in the teeth of the provisions of section 4 of the Indian Evidence Act, and in our opinion tin's error lies at the basis of the conclusions at which the Judge arrived, “that plaintiffs have failed to prove the identity of the property claimed with that of the property mortgaged.” No doubt, there may be circumstances which should induce the Court to call for confirmatory evidence, but in this case the learned Judge has not referred to any such circumstances. For aught we know such circumstances may exist in this case. “We cannot therefore regard his finding as a judicial disposal of the question at issue. We therefore refer the case to him, so that he may come to a finding on the issue as to the identity of the plots, having regard to our ruling as to the effect of the presumption which arises in the case. The Judge will also, in case he finds the identity of the four shops established, find what amount is payable by the plaintiffs as a condition of his being allowed to redeem all five shops. If he finds that the identity of the four shops has not been proved, he will then find what is the account the plaintiffs ought to pay for redeeming the single shop which is admittedly included in the mortgage. We refer the above issue to the Court below under section 566 of the Code of Civil Procedure, and direct the Court to find upon the evidence already on the record. We refer the above issue to the Court below under section 566 of the Code of Civil Procedure, and direct the Court to find upon the evidence already on the record. On return of the finding ten days will be allowed for filing objections.