K. M. MEHTA, J. ( 1 ) ZAVERBHAI Somabhai Patel the appellant-original plaintiff has filed this Second Appeal under section 108 of Code of Civil Procedure. against the judgment and decree dated 16. 3. 1977 passed by the learned Extra Assistant Judge, Nadiad in Regular Civil Appeal No. 28 of 1976. The learned Appellate Judge by his judgment and decree was pleased to allow the appeal and pleased to quash and set aside the judgment and decree dated 2. 2. 1976 passed by the learned Civil Judge (JD) at Dakore, Kheda District in Regular Civil Suit No. 11 of 1973 filed by the plaintiff. 1. 1 The appellant is the original plaintiff and the respondents are the original defendants and they are referred to as such in this judgment for the sake of convenience and brevity. ( 2 ) BEFORE I set out the facts I shall set out the pedigree which is given by the learned advocate for the appellant in this behalf. Said pedigree is as under:khatubhai Bapuji : died on 2. 11. 1945 - : : Banjiben Vakhatben (Daughter-D1) (Daughter) : Pre deceased Khatubhai : Madhabhai D2 Motibhai D-3 : : : : Chhaganbhai Zaverbhai (plff.) ( 3 ) FROM the pedigree it emerges that Khatubhai Bapuji had two daughters Banjiben and Vakhatben. Vakhatben died before the death of Khatubhai. Khatubhai died on 2. 11. 1945. Banjiben the other daughter had two sons vis. Madhabhai Motibhai and Vakhatben had two sons viz. Madhabhai-deft. no. 2 and Motibhai deft. no. 3. Vakhatben had 2 sons viz. Chhaganbhai and Zaverbhai. Zaverbhai is the plaintiff of the suit; whereas Banjiben is defendant no. 1 and Motibhai is defendant no. 3. ( 4 ) IT may be noted that in the village Mithana=-muvada there is a piece of land bearing Gram Panchayat No. 150. To the east of the said land is the land of Kanubhai, to the east there is public road, to the north there is land of Somabhai and to the south there is land there is G. P. No. 149 belonging to Madhabhai. The value of the land is alleged to be Rs. 400. 00 and there is a kutcha hut therein and the pegs meant for tethering cattle. On 1. 11. The value of the land is alleged to be Rs. 400. 00 and there is a kutcha hut therein and the pegs meant for tethering cattle. On 1. 11. 1918 Khatubhai made a registered will under which it is provided that the properties would go to his widow as a limited owner having no right to transfer or alienate the properties; to his sons or widow on condition that she does not remarry and she would take limited owner and his two daughters viz. Banjiben defendant no. 1 and Vakhatben-mother of the plaintiff. the will also provided that in the event of the death of any of his daughters, the property would go to her heirs ( 5 ) THE said land belonged to the plaintiffs mother Vakhatas father and after his death some 25 years back a partition took place as between the plaintiff and defendant no. 1. The said land came to the share of the plaintiff and his brother Chhaganlal and since then not only the said land runs in the name of plaintiff but it has been in possession of plaintiff and his brother chhaganlal as owner. It is the case of the plaintiff that though the defendants have no rights and yet on 4. 2. 1973 they dug pillars in the suit land and started construction thereon without obtaining permission from the Panchayat. The plaintiff gave an application to the Panchayat objecting to the same. Therefore, the Sarpanch and two other members prevented the defendants from placing any construction and yet the defendants continued with the said act of construction by force. 5. 1. Being aggrieved by the said action, the plaintiff was constrained to file the Regular Civil Suit No. 11 of 1973 in the court of learned Civil Judge (Sd) at Dakore for restraining the defendants from interfering with the plaintiffs possession in the suit land and the construction as placed in the suit land should be removed at the cost of the defendants and he may be awarded the costs of the suit. The plaintiff also filed application exh. 4 for temporary injunction in this behalf which was granted on 8. 2. 73. ( 6 ) THE defendants filed written statement exh. 17 inter alia contending that the suit claim was not true. The plaintiff also filed application exh. 4 for temporary injunction in this behalf which was granted on 8. 2. 73. ( 6 ) THE defendants filed written statement exh. 17 inter alia contending that the suit claim was not true. The same was not admitted by the defendants and that the description of the suit property was false and the measurements and description in the map prepared by the commissioner are not true and not admitted. They further contended that the plaintiff is not the owner and is not in possession of the suit land and that the entire suit lands were in exclusive possession and were of the exclusive ownership of the defendants. It was contended that formerly they were of the ownership of Khatubhai the father of the defendant no. 1 and on his death, the defendant no. 1 had inherited the entire property and he is possession. During the trial certified copy of the registered will executed by Khatubhai has been produced and the same was admitted in evidence as no objection was taken by the otherside the same was allowed to be produced in evidence. However as the certified copy of the will was admitted into evidence as there was no objection regarding reception and therefore the same was admitted into evidence as secondary evidence with following the procedure under section 65 of the Evidence Act and was given exh. 47. The defendants also contended in the written statement ant they do not admit the map, report and the measurements made by the court commissioner in respect of the disputed land. They contended that there have been parts shown as A,b. C. D. in the report of the commissioner. They further contended that the portion marked A,e,f. G. H,i,j,k ,d. T. Q and A constitute one lot and is of their ownership and in their possession. They further contended that formerly defendant no. 1s father Khatubhai was the owner and in possession of these lands and after his death they have become the owners and come in possession of these lands. The defendants alleged that the hut and the cattle shed in the land belong to them and not to the plaintiff. They further contended that defendants nos 1 and 2 do not admit that the partition has taken place as between the plaintiff and defendant no. 1 some 25 years back. The defendants alleged that the hut and the cattle shed in the land belong to them and not to the plaintiff. They further contended that defendants nos 1 and 2 do not admit that the partition has taken place as between the plaintiff and defendant no. 1 some 25 years back. These defendants do not admit the plaintiff is the karta. ( 7 ) BEFORE the trial, the plaintiff has produced the following oral and documentary evidence: Zverbhai Somabhai is examined at exh. 32, Ichabhai Nathabhai has been examined at exh. 72 and Dahyabhai Shanabhai has been examined at exh. 73. Over and above the plaintiff has produced the following documentary evidence: (1) Exh. 36 Extract of Gram Panchayat for the period from 1966 to 72, (2) Exh 37 Extract of Assessment of 1958, (3 ). Exh. 38 Ditto of 1967 to 1970 in respect of Sur. Nos. 149,150 (4) Exh. 39 Ditto of 1970 to 1973 AD (5) Exh. 40 Vera pavti of S. Nos. 150,107,137 (6) Exh. 41 Ditto No. 120,150 of House tax. (7) Exh. 42 Ditto of 1967-68 17th March 63 (8) Exh. 42 Ditto of 1968-69 1 1/03/1969. (9) Exh. 44 Ditto of 1969-70 27th March 70 (10) Exh. 45 Ditto of 1971-72 26th March 72 (11) Exh. 46 Death Certificate dt. 2nd November 45 of Khatu Bapuji (12) Exh. 47 Certified copy of Will of Khatu Bhapuji dt. 1st November 18 (13) Exh. 48 Ferfar entry No. 339 of 1946-47 (14 ). Exh. 49 Ferfar entry no. 341, 25 January 46 (15) Exh. 50 Record of Right of S. No. 83 from 1931-32 to 1948 -49 (16) Exh. 51 Ditto from 1949/50 to 1957-58 (17) Exh. 52 R. R. of S. No. 31 from 1931-32 to 1948-49 AD (18 ). Exh. 53 Ditto from 1949-50 to 1957-58 (19) Exh. 54 RR of S. No. 76 from 1931 to 1949 (20 ). Exh. 55 Ditto from 1949 to 58 (21 ). Exh. R. R. of S. Nio. 78 from 1931/1949 (22 ). Exh. 57 Ditto from 1949 to 58 (23) Exh. RR of S. No. 84 from 1931/ 1949 (24) Exh. 59 Ditto from 1949 to 58 (25) Exh. 60 RR of S. No. 117/1 from 1931/1949 (26 ). Exh. 61 Ditto from 1949 to 58 (27 ). Exh. 62 RR of S. No. 27/2 from 1931/1949 (28) Exh. Exh. 57 Ditto from 1949 to 58 (23) Exh. RR of S. No. 84 from 1931/ 1949 (24) Exh. 59 Ditto from 1949 to 58 (25) Exh. 60 RR of S. No. 117/1 from 1931/1949 (26 ). Exh. 61 Ditto from 1949 to 58 (27 ). Exh. 62 RR of S. No. 27/2 from 1931/1949 (28) Exh. 63 Ditto from 1949 to 58 (29) Exh. 64 Court Commissioners Map (30) Exh. 65 Commissioners notice (31) Exh. 66 Vera pavti of House Nos 120;150 (32) Exh. 93 Certified Copy of decision of Dy. No. 22/65 dated 14. 2. 67 Collector in Appeal. ( 8 ) AS regards the defendants are concerned, the defendants have produced at exh. 71 the death certificate of Somabhai and at exh. 90 the original agreement. On behalf of the defendants, Banjiben has been examined at exh. 80, Madhabhai Shankerbhai has been examined at exh. 82 and Somabhai Mangalbhai has been examined at exh. 98. ( 9 ) ). The Trial Court by its judgment and decree dated 2. 2. 1976 came to the following conclusion:1. The plaintiff proved that the suit open land was of the ownership and in the possession of Khatubhai Bapuji and in the distribution of the properties the suit land went to his share (plaintiff) and to his brother and they are in its possession as owners since last 25 years. 2. The plaintiff proved that the defendant no. 2 has started to make constructions illegally and unauthorisedly and he did not stop the same when so told by the Panchayat members. 3. The defendants nos 1 and 2 failed to prove that there are no separate parts in the suit land but it is it is compact and one portion and they are in possession of the suit land since the time of the ancestors as owners. They also failed to prove the boundaries and descriptions of the suit land are correctly mentioned in the plaint. 4. The defendants no. 1 and 2 failed to prove that they had made all the constructions in the suit land as its owners. 5. The defendants nos 1 and 2 failed to prove that they had affixed the wood in the said wall to the south of house of Mangfal Suma for constructing Adala in the suit land and writing was also executed in this behalf. 6. 5. The defendants nos 1 and 2 failed to prove that they had affixed the wood in the said wall to the south of house of Mangfal Suma for constructing Adala in the suit land and writing was also executed in this behalf. 6. The defendants nos 1 and 2 failed to prove that Khatubhai Bapuji was in possession of the suit land and other lands on its south and west as the owner and he had got the house in the lands and on his death the defendant no. 1 has inherited all the said properties as his daughter and constructions were carried out therein were made as the owners of the properties7. The defendants nos 1 and 2 failed to prove that they are the owners of the suit land as they are in its possession for more than 12 years. ( 10 ) THE court held that the plaintiffs are entitled to the order of mandatory injunction as prayed for in this behalf. ( 11 ) ). Being aggrieved and dissatisfied with the aforesaid judgment and decree dated 25. 2. 1976 passed by the learned Civil Judge (SD) at Dakore in Regular Civil Suit No,. 11 of 1973, the original defendants filed Regular Civil Appeal No. 28 of 1976 before the learned District Judge, Kheda on 27. 2. 1976. ( 12 ) THE learned District Judge by his judgment and decree dated 16. 3. 1977 after hearing the parties came to the conclusion that the respondent-plaintiff failed to prove that they are the owners and exclusive possession of the suit land. The learned District Judge also held that the defendants have not encroached upon the suit land by making unauthorised construction and ultimately the learned Judge allowed the appeal and was pleased to quash and set aside the judgment and decree of the Trial Court. ( 13 ) BEING aggrieved and dissatisfied by the said judgment and decree the original plaintiffs-appellants have filed this Second Appeal before this Court under Section 100 of the Code of Civil Procedure. ( 14 ) THE Second Appeal was admitted by this court on 21. 4. 1977 on the following substantial question of law. ( 13 ) BEING aggrieved and dissatisfied by the said judgment and decree the original plaintiffs-appellants have filed this Second Appeal before this Court under Section 100 of the Code of Civil Procedure. ( 14 ) THE Second Appeal was admitted by this court on 21. 4. 1977 on the following substantial question of law. " Whether in the facts and circumstances of the case, the learned Extra Assistant Judge of Kaira has committed a substantial error of law in holding that the construction put up by the defendant-respondent was not unauthorised inspite of his finding that the property was the joint property of the appellant and the respondent and without adjudicating the question whether the respondent-respondent had become the owner of that part of land by adverse possession ?contention on behalf of the plaintiff-appellant ( 15 ) THE learned advocate for the plaintiff has submitted that during the trial the plaintiff and defendants have produced documentary evidence. Said evidence consists of entries in the record of rights, copies of registration under Bombay Tenancy and Agricultural Land Act , Copies of the receipt for payment of tax , records from Gram Panchayat and the copy of the will exh. 47. ( 16 ) THE learned advocate for the plaintiff- appellant submitted that the fact of actual partition of agricultural land is established beyond doubt by exh. 48 and 49. So far as the suit property and Panchayat property being No. 149 is concerned, the partition is established by exhs. 36 to 46. The Appellate Court has come to the conclusion that the suit property and the property bearing Panchayat No. 149 are the properties of co-ownership of the parties. It is submitted that the finding which is nobodys case itself is an error of law. Further more if the court discarded or failed to consider the material evidence in arriving at any conclusion, it is an error of law. The judgment of the appellate court is vitiated by error of as it has discarded relevant and admissible evidence on grounds opposed to law. ( 17 ) IT was contended on facts that first Appellate Court was wholly wrong in discarding the Khasra entries on the solitary statement in certain paragraphs of the plaint and therefore the High Court could interfere with its findings in Second Appeal. ( 17 ) IT was contended on facts that first Appellate Court was wholly wrong in discarding the Khasra entries on the solitary statement in certain paragraphs of the plaint and therefore the High Court could interfere with its findings in Second Appeal. Learned counsel also submitted that the aforesaid judgment shows that the entries in the record of right which have the presumption value are required to b e shown to be wrong by the other side. He also submitted that even the entries made in the revenue and Panchayat record are presumed to be true and the defendants have not shown that the entries are wrong and therefore, the judgment of the appellate court suffers from error of law. He further submitted that the evidence furnished by the said documents has not been considered and without considering their evidentiary value the first appeal is decided and therefore also the judgment and decree suffers from infirmity of law. The Appellate Court has come to the conclusion that the suit property is the property of co-ownership which is onobody;s case and therefore the finding suffers from error of law. ( 18 ) THE learned advocate for the plaintiff-appellant further submitted that the omission to consider relevant oral evidence supported by the documentary evidence is also an error of law. ( 19 ) THE learned advocate for the plaintiff-appellant has relied upon section 110 of the Evidence Act in which it is provided that when the question is whether any person is owner of anything of which, he is shown to be possession, the burden of proving that he is not the owner is on the person who affirms that he is not an owner. So far as the facts of the present case are concerned, it is established by showing that the plaintiff-appellant is in possession of the suit property and respondent-defendant have failed to discharge the burden of proof that the plaintiff-appellant is not owner. ( 20 ) HE has also relied upon section 114 of the Indian Evidence Act which provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. . . ( 21 ) RELYING upon these provisions the learned advocate for the appellants submitted that if a person is shown to be put in possession , the burden to prove that he is not inposession of the same is on the person who alleged the same. So far as the present case is concerned, it is established that the appellant is in possession of the suit land and the respondent has failed to discharge the burden of proof that the plaintiff-appellant is not the owner. ( 22 ) IT was further submitted that the plaintiff is examined himself at exh. 32, Ichabhai is examined at exh. 72, and Dahyabhai is examined at exh. 73. The plaintiff as well as the said witnesses have given oral evidence establishing that there was a partition between the plaintiff and the defendants. Their evidence establishes that the suit land bearing Gram Panchayat No. 150 came to be allotted to the plaintiffs branch and the plaintiff is in possession thereof and that the plaintiff had also put up cattle sed on the said land since long. ( 23 ) IT was further submitted that the Trial Court also came to the conclusion that since long the suit land bearing Gram Panchayat No. 150 and the adjacent land bearing Gram Panchayat No. . 149 which is shown to be of the ownership of the defendant was one compact piece of block and was subsequently divided into two parts one part which was given Gram Panchayat No. 149 fell to the share of defendant and the other block namely Gram Panchayat No. 150 came to the share of the plaintiff. ( 24 ) IT was further submitted that the Trial Court relied upon the will, the record of rights, mutation entries and Panchayat records as well as the oral evidence given by the parties and their witnesses and came to the conclusion that the plaintiff was the owner of the suit land and that he is in possession of the suit land and he is the exclusive owner. ( 25 ) IT was further submitted that the defendant being aggrieved and dissatisfied with the said judgment and order had preferred appeal on the court of District Judge, Nadiad being Civil Appeal No. 28 of 1996 and the District Court has reversed the said judgment on conjectures and surmises and discarded the evidence on record. ( 25 ) IT was further submitted that the defendant being aggrieved and dissatisfied with the said judgment and order had preferred appeal on the court of District Judge, Nadiad being Civil Appeal No. 28 of 1996 and the District Court has reversed the said judgment on conjectures and surmises and discarded the evidence on record. The appellate court allowed the appeal on the grounds opposed to law and discarded the evidence furnished by way of entries in the mutation register and records of right as well as records of Panchayat on the ground that entries in the record are not documents of title. The appellate court discarded the exh. 47 which is certified copy of the will on the ground that procedural under section 65 of the Evidence Act was not followed. ( 26 ) IT was further submitted that during the trial plaintiff produced documentary evidence evidencing partition. The extract from the Panchayat record shows that the plaintiff is the owner of the suit land. The plaintiff has relied upon exh. 36 the Assessment Register of the Panchayat for the years 1966-67 to 1970-71, exh. 40 the receipt of payment of house tax on the site and also exhs. 41 to 45 are the receipts of payment of tax. The plaintiff has also relied upon exh. 60 to 67 and 73 to 75 and the plaintiff also relied upon other evidence to show that he is in possession of the suit land. ( 27 ) THE plaintiff also relied upon exh. 48 and 49 which are the extract of mutation entries evidencing the partition between the defendant no. 1 and Chhaganbhai. ( 28 ) IT was further submitted by the learned advocate for the appellant-plaintiff that the learned Extra Assistant Judge allowed the appeal principally on the ground of exh. 47 certified copy of the will dated 1. 11. 1918 was not admissible in evidence as procedure under section 65 of the Evidence Act was not followed. It has been further submitted that in view of the judgments reported in 1979 (2) GLR 390 in the case of Hiralal Devji Kharva and ors. 47 certified copy of the will dated 1. 11. 1918 was not admissible in evidence as procedure under section 65 of the Evidence Act was not followed. It has been further submitted that in view of the judgments reported in 1979 (2) GLR 390 in the case of Hiralal Devji Kharva and ors. vs. Ladhibai Gokal wd/o Gokal Jadav Kharva and AIR 1991 (AP) 31 in the case of Land Acquisition Officer , Vijaywadea Thermal Station vs. Nutalapati Venkata Rao, aforesaid order of the learned Extra Assistant Judge is erroneous and this court may interfere with this Appeal under section 100 of Civil Proc. Code because this appeal involves pure question of law in this behalf. ( 29 ) IT is further submitted that the learned Assistant Judge has stated that in his judgment that though Chhaganbhai is elder to the plaintiff he should have been the manager of the undivided Hindu family but the plaintiff who is younger to said Chhaganbhai has filed the suit as a manager of the Hindu undivided family. Chhaganbhai being eldest in the family he would know about the partition of the property more. In view of the same it was necessary to examined said Chhaganbhai in order to bring about the correct position about the portion. But said Chhaganbhai was not examined to prove the partition aspect in this behalf. ( 30 ) LEARNED advocate for the appellant-plaintiff submitted that writing was not necessary under the Hindu law for the validity of any transfer whatsoever and in all ancient systems of law. Transfer for possession was the only requisite to the transfer of title. When no writing is required by the Act, the transfer may be made orally. Thus a partition of joint family property may be made orally and also a surrender of a lease and a release by a mother of her interest in joint family property as per the judgments reported in AIR 1921 Madras 363 in the case of J. C. H. Fowler vs. Secretary of State, 210 and AIR 1969 (Madras) 462 in the case of the Weavers Mills Ltd. vs. Balkis Ammal and ors. ( 31 ) LEARNED advocate for the appellant-platntiff has relied upon exh. ( 31 ) LEARNED advocate for the appellant-platntiff has relied upon exh. 47 the will executed by Khatubhai in which it has been mentioned that the house mentioned therein and other properties may be given to both of his daughters and after the death of any of his daughters the property may be given to the heirs of that deceased in this behalf. ( 32 ) LEARNED advocate for the appellants submitted that over and above there is exh. 38 which is a Gram Panchayat record shows that survey no. 150 belongs to Zaverbhai and as owner and possessor of the property in question. Exh. 39 also shows that survey no. 150 in the name of Zaverbhai both as owner and possessor in this behalf. He has also relied upon exh. 40 the receipt issued by the Panchayat for payment of the house tax of Rs 5. 75. Exhs. 65 and 66 are also receipts issued by the Panchayat for payment of house tax. Exh. 43 is the receipt in respect of payment of house tax for the year 1968-69, exh. 43 is the receipt of payment of tax for the year 1969-70 and exh. 45 is the receipt for the payment of tax which shows that in the year 1946-47 after the death of Khatubhai on 2. 11. 1945. The property has been given to daughter Banji and Chhaganbhai in this behalf who is the son of deceased daughter Banji. The said entry has been recorded after the death of Khatubhai on 2. 11. 1945. This shows that there was already a partition earlier and the property has been dewelved on Banjiben as well as Chhaganbhai. Thereafter he relied upon exh. 49 which shows that the partition was granted on 21. 1. 1946 and the same property has been to Banjiben and another property was given to Chhaganbhai in this behalf. He has also relied upon the record of rights of the lands where agriculture is being done right from year 1931-32. He has also relied upon exh. 48 which shows that in the year 1946-47 after the death of Khatubhai on 2. 11. 1945 the property has been given to the daughter Banjiben and Chhaganbhai who is the son of deceased daughter Banji. The said entry has been recorded after the death of Khatubhai on 2. 11. 45. He has also relied upon exh. 48 which shows that in the year 1946-47 after the death of Khatubhai on 2. 11. 1945 the property has been given to the daughter Banjiben and Chhaganbhai who is the son of deceased daughter Banji. The said entry has been recorded after the death of Khatubhai on 2. 11. 45. This shows that there that there was already a partition earlier and due to the the same the property has been dewelved both on Banjiben as well as Chhaganbhai. He has also relied upon exh. 49 which shows that the partition was granted on 25. 1. 1946 a some property has been given in favour of Banjiben and another property was given to Chhaganbhai in this behalf. He has also relied upon the record of rights which shows that Banjiben was doing agriculture on this land right from 1931-32 to 1943-44 in one portion and in other portion of the land the cultivation was being done by Chhaganbhai from 1940-50 to 1953-54. They are exh. 50 and 51. He has also relied upon exhs. 52,54,55,56,57,58,60,61 and 62 which show that the land was cultivated by Banjiben and Chhaganbhai. Exh. 64 is a receipt for payment of tax in connection with water as well as tax to the Panchayat in the year 1973-74. ( 33 ) LEARNED advocate for the appellant-plaintiff has relied upon exh. 42 which is a receipt of payment of tax to the Gram Panchayat by Zaverbhai. He has also relied upon the extract from the Panchayat record at exh. 36 in which it is mentioned that Zaverbhai is in possession of the land he he is paying the tax. Exh. 38 and 39 are the extracts from the Panchayat record which show that Zaverbhai is the owner of the land and he was paying the house tax etc. He has also relied upon exhs. 41,44, and 45 regarding record of rights. He has also relied upon exh. 50 and 63 also in this behalf. He has also relied upon the map exh. 64. ( 34 ) THE learned advocate for the appellant-platntiff has also relied upon the evidence of Madhabhai Shankerbhai at exh. 87. He has also referred to the evidence of Ichabhai Nathabhai exh. 72. He is the neighbour of Zaverbhai. 50 and 63 also in this behalf. He has also relied upon the map exh. 64. ( 34 ) THE learned advocate for the appellant-platntiff has also relied upon the evidence of Madhabhai Shankerbhai at exh. 87. He has also referred to the evidence of Ichabhai Nathabhai exh. 72. He is the neighbour of Zaverbhai. He has also stated that Khatubhai is the owner of property bearing Gram Panchayat No. 150 and a partition also took place before five years. The plaintiff Zverbhai was in possession of the suit land and cattle shed. He has also relied upon the deposition of Dahyabhai exh. 73. He has also stated that before 35 years there was a partition and Panchayat No. 150 came to the share of Zaverbhai the plaintiff and Panchayat No. 149 came to the share of one Madhabhai years before a partition took place. This also shows that Zaverbhai is in possession of the land bearing Panchayat No,. 150 since last 35 and Madhabhai is in possession of the land bearing Panchayat No. 149 since last 35 years. ( 35 ) (16) Thereafter the learned advocate or the appellant has relied upon 1979 (2) GLR 390 in the case of Hiralal Devji Kharva and ors vs. Ladhibhai Gokal wd/o Gokal Jadav Kharva and ors. , 1984 GLH 831 in the case of -and alsothe decision reported in AIR 1991 (AP) 31 and particularly in para 21 it is observed as under:"therefore, the marking of secondary evidence, if not objected to at the trial cannot be objected to later, and the contentscan also be looked into" ( 36 ) THE learned advocate for the appellant has relied upon the decision of the Honourable Supreme Court reported in AIR 1975 SC 1119 in the case of Munna Lal (Deceased) vs. Suraj Bhan and ors. In para 6 of this judgment the Honourable Supreme Court has observed as under:" Turning to Ex. y we find it impossible to accept the contention that the partition of the shops was itself effected by the document. The document expressly mentions that the parties had appointed one Thakar Chandgi Ram Gupta as a Punch and that they had decided to accept the decision given by him. The document then sets out the terms of that decision and says: We both shall be bound by that decision. The document expressly mentions that the parties had appointed one Thakar Chandgi Ram Gupta as a Punch and that they had decided to accept the decision given by him. The document then sets out the terms of that decision and says: We both shall be bound by that decision. It is contended that the decision of the Punch must be treated as a nullity because a Punch is in the position of an arbitrator and he could not have acted except in accordance with the provisions of the Arbitration Act. This argument seems to us to sophisticated to be applied to the facts before us The parties appear to have asked a person of common confidence to effect the partition and it was not intended to resort to any formal proceedings under the Arbitration Act. It was therefore, not necessary for the parties to execute a formal reference or for the Panch to declare a formal written awards. As a memorandum of a past event the document could therefore, be received in evidence though it is not registered. The first contention accordingly fails. " ( 37 ) THE learned advocate for the appellants has also relied upon the judgment in the case of Nainsukhdas Sheonarayan vs. Gowardhandas Bindrabandas reported in AIR (35) 1948 Nagpur 110. In para 17of its judgment the court has observed as under:" (17.) A partition of immovable property between coparcener may be made orally and is not required by any law to be in writing. . . . . " ( 38 ) THE learned advocate for the appellants has also relied upon the judgment of the High Court of Kerala reported in AIR 1959 (Kerala) 249 in the case of Govindan Raman vs. Govindan Kesavan. In para 4 of its judgment the High Court of Kerala has observed as under:". . . . THE partition of a tarward need not always by a registered deed or a decree of a court. The members may agree to have a divided status and the absence of a deed or a decree, the question whether there has been such a division has to be gathered from the subsequent conduct of the parties. Exh. VI, X, XX and XXXII are partition deeds in 4 out of the 6 branches constituting the main tarward. The members may agree to have a divided status and the absence of a deed or a decree, the question whether there has been such a division has to be gathered from the subsequent conduct of the parties. Exh. VI, X, XX and XXXII are partition deeds in 4 out of the 6 branches constituting the main tarward. This is a clear indication that the tarawad had become divided into branches some time before the execution of these deeds. Such division has been sworn to be D. W. 5 who is the appellants brother. The appellant when he was examined as Pw. . 3 admitted that the main tarawad had no common Karnavan at that time. This supports the defence case of division of the tarwad. WE have therefore no hesitation in holding that the plea of division set up by the defendant has to be accepted. The appeal must therefore fail in respect of items 4 to 6 in the plaint schedule. In view of this conclusion the question whether item 5 and 6 of S. No. 62/9a and C forming part of item 6 were covered by the mortgages is of no importance and does not call for decision. " ( 39 ) THE learned advocate for the appellants has relied upon the decision of the Honourable Supreme Court reported in AIR 1974 SC 1178 in the case of Shikhanchand Jain vs. Diguban Jain. In this judgment the Honourable Supreme Court has held as under:"khasra is a record of right. According to Section 45 (2) of the Central Provinces Land Revenue Act 1917 Section 80 (3) of that Act provides that entries in a record of rights shall be presumed to be correct unless contrary is shown. This provision raises presumption of correctness of the aforesaid Khasra entries. Therefore, the burden of proving adverse possession is a heavy one on the person alleging so. ( 40 ) ON the other hand Mr. D. F. Amin learned advocate for the respondents has tried to support the judgment and decree of the appellate court in this behalf. My conclusion . ( 41 ) I have also considered the oral evidence of Madhabhai exh. 87 and also the evidence of Banjiben exh. 80. I have also considered the oral evidence of the plaintiff as well as the defendants. My conclusion . ( 41 ) I have also considered the oral evidence of Madhabhai exh. 87 and also the evidence of Banjiben exh. 80. I have also considered the oral evidence of the plaintiff as well as the defendants. I have also considered the documentary evidence produced on record by both the sides. I have also considered the authorities cited by both the sides. ( 42 ) THE partition of the properties can be made orally. Thus oral partition was also included. In the present case, after partition evidencing partition the plaintiff has produced cogent and convincing evidence to show that the parties were already partitioned and the land bearing Panchayat No. 149 belongs to defendant no. 1 and the land bearing Panchayat No. 150 belongs to the plaintiff. The plaintiff has also produced evidence to show that he is in possession of the land bearing Panchayat No. 150 which I have already referred to earlier. This prima facie shows that the plaintiff is the owner and possessor of the said property. The plaintiff has produced a copy of the will as secondary evidence in this behalf. The learned advocate for the appellant-plaintiff has also relied upon section 65 of the Evidence Act. Normally documents must be proved by production of primary evidence and secondary evidence generally not admissible as per section 64 of the Evidence Act. However, there are exception to the Rule and this section states the various class of cases in which secondary evidence relating to documents may be given. The principle is that so long as the original exists and is available, it being the best evidence must be produced. If it cannot be had on account of its loss, destruction, detention by the opponent, or third person who does not produce after notice, physical or legal irremovability any other cause, secondary evidence is admissible. Here I am quoting the observations made by Porter-J, in Thomas v. T. La 168 (Am) where he has given the principles on which secondary evidence can be relied upon: The observations of Porter-J are as under:" (THE Rule) is only another form of expression for the idea that when you lose the higher proof you may offer the next best in your power. . . . . The rule does not mean that mens rights are to be sacrificed and their property lost because they cannot guard against events beyond their control, it only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to that" ( 43 ) IN this case the plaintiff has proved the will as provided under section 65 of the Evidence Act. In fact the copy of the will was produced before the Trial Court and the defendants did not objected for exhibiting the said will in this behalf. However, before the Appellate Court the defendants have tried to object to the said copy of the will on the ground that the copy of the will is a secondary evidence. The case will squarely fall within section 65 (f) of the Act particularly when original document of the will of which certified copy was permitted to be produced as per the provisions of Evidence Act to be given in evidence and exhibited by the learned Trial Judge and at that time the defendants did not object to the same. The appellant plaintiff has successfully proved that he has satisfied the condition precedent of section 65 (f) of the Act. ( 44 ) IN view of the judgment of High Court of Kerala (Supra) and in view of the Full Bench judgment of the Andhra Pradesh High Court (Supra) once the certified copy of the registered will executed by Khatubhai has been admitted in evidence by the Trial Court without any objection regarding the admissibility of the secondary evidence on the ground that the procedure under section 65 (f) of the Evidence Act was followed. The contention of the defendants that the will is not admissible in evidence has to be rejected. Further more no objection regarding the proof of the will was raised and therefore the certified copy of the will was admitted by the Trial Court in evidence at exh. 47 As certified copy of the will is admitted in evidence by Trial Court without any objection regarding the reception of second evidence as proof of the original, the said objection cannot be taken at appellate stage in appeal. ( 45 ) THE section 110 of the Evidence Act which provides burden of proof as to ownership. 47 As certified copy of the will is admitted in evidence by Trial Court without any objection regarding the reception of second evidence as proof of the original, the said objection cannot be taken at appellate stage in appeal. ( 45 ) THE section 110 of the Evidence Act which provides burden of proof as to ownership. This section embodies the well known principle that possession is prima facie proof of title. Possession of property, movable or immovable, affords prima facie presumption of ownership as men generally own the property they possess. Possession is good title against any one who cannot prove a better. This notion has come down from the earliest times and is to be found in the Roman law. Under the Roman law a person wrongfully dispossessed of property could recover it by an interdictum by proving possession. The policy of the law is to allow a person in possession of property to continue his possession until a rival claimant proves his title thereto. 45-A. Section 110 of the Act provides that possession, when long and continued up to a recent date, leads to presumption of title. This section refers to the presumption to be made of ownership based on the circumstance of such possession, and allows the plaintiff with such prima facie title to claim a decree where no superior title is proved on the other side. ( 46 ) THE section 114 of the Evidence Act which provides that the Court may presume existence of certain facts. A presumption may be defined to be an inference as to the existence of one fact from the existence of some other fact founded upon a previous experience of their connection. Broadly speaking there are two classes of presumption viz. (1) presumptions of fact (2) presumptions of law. The latter is divided into (a) rebuttable presumptions of law and (b) irrebuttable or conclusive presumptions of law. Presumptions of fact are nothing more than logical inference of the existence of one fact drawn from other proved or known facts without the help of any artificial rules of law and they are always rebuttable. The legal consequence of drawing a presumption is to cast on the opponent the duty of producing contrary evidence. Presumptions of fact are nothing more than logical inference of the existence of one fact drawn from other proved or known facts without the help of any artificial rules of law and they are always rebuttable. The legal consequence of drawing a presumption is to cast on the opponent the duty of producing contrary evidence. In this case the defendants have not been able to prove any contrary evidence which goes to show that the plaintiff is not the owner of possessor of the land in question. 46-A The effect of this section coupled with the general repealing clause at the beginning of the Act is to make it perfectly clear that the courts of justice are to use their own common sense and experience in judging the effects of particular facts and that they are to be subject to no technical rules. ( 47 ) A partition of immovable properties between the family members can be orally and the same is not required to be reduced into writing. (Re: case reported in AIR (35) Nagpur 110 in the case of Nainsukhdas Sheonarayan vs. Gowardhandas Bindrabandas ). 47-A I have considered the facts of the case. I have considered the contention of the learned advocate for the appellant-plaintiff and the authorities cited by him in this behalf. I have also considered the judgment and decree of the appellate court as well as the Trial Court in this behalf. I have also considered various documentary evidence produced by the parties. I have also considered the various provisions of the Evidence Act particularly sections 64,65, 110 and 114 in this behalf. I have also considered the Gram Panchayat records. The plaintiff has proved that the suit open land was of the ownership of Khatubhai Bapuji and in distribution of the properties, suit land went to his share i. e. the plaintiff and to his brother and they were in possession as owners since last 25 years. The defendants nos 1 and 2 failed to prove that there no separate parts in the suit land but it is a compact one portion and the plaintiff is in possession of the suit land since the time of their ancestors as owner. The plaintiff proved the boundaries and description of the suit land which are mentioned in the plaint. The defendants nos 1 and 2 failed to prove that there no separate parts in the suit land but it is a compact one portion and the plaintiff is in possession of the suit land since the time of their ancestors as owner. The plaintiff proved the boundaries and description of the suit land which are mentioned in the plaint. The plaintiff has been able to prove the will by producing certified copy which was admitted in evidence without any objection as to the admissibility as secondary evidence which was incorrectly rejected by the appellate court. The appellate court did not properly consider the said contention and it was an error of law discarding the evidence Act and more particularly the principles and authorities cited by the plaintiff in this behalf. ( 48 ) IN view of the aforesaid facts and circumstances of the case in my view the finding of the learned Trial Judge is right and the judgment and decree dated 2. 2. 1976 passed by the learned Civil Judge (SD) at Dakore in Reg. Civil Suit No. 11 of 1973 is required to be confirmed; where as the the learned Appellate Judge has committed an error of law and the judgment of the Appellate Court dated 16/03/1977 in Regular Civil Appeal No. 28 of 1976 is required to be quashed and set aside. ( 49 ) IN the result the Second Appeal requires to be allowed and the same is accordingly allowed. No order as to costs. .