JUDGMENT : 1. This Second Appeal is directed against the judgment and decree dated 30th November, 2010 passed by the learned Additional District Judge, 2nd Court, Malda in Title Appeal No. 48 of 2009 reversing the judgment and decree dated 30th June, 2009 passed by the learned Civil Judge (Junior Division), 2nd Court, Malda in Title Suit No. 120 of 2000. The present appellant was the plaintiff in the suit and prayed for a declaration that the Trust Deed dated 19th March, 1991 was absolutely a forged deed and the same was never executed by Chandi Pada Chakraborty who had no mental and physical capacity to execute any such deed. And further prayed for an injunction restraining the defendants from claiming absolute ownership of the suit property on the basis of alleged Trust Deed as the same was void and was never executed on 19.03.1991. 2. Defendant nos. 1, 2, 4, 5 and 6 filed written statements denying the plaint averments and that the plaintiffs have no right, title and interest over the suit property and they are not entitled to get any decree for permanent injunction. The learned trial Judge settled as many as six issues. While answering issue no.3 "Whether the deed dated 19.03.1991 is valid in the eye of law?" which is the prime issue in the suit the trial Judge held that the plaintiff completely failed to establish his title in the suit property. Plaintiff could not prove that the Trust Deed was procured by the false personification and by exercising fraud. Therefore, the trial Judge dismissed the suit on contest. The plaintiff/respondent preferred appeal against the said judgment and decree passed by the trial Court dismissing the suit. The Appellate Court reversed the findings of the trial Court and set aside the judgment and decree passed by the 1st Court. 3. Plaintiff challenged the authenticity of the Trust Deed and produced a certified copy of the same before the Court which was marked Exhibit on admission (emphasis by me). It was not denied that the deed was registered and the defendant was supposed to be in custody of the original deed inasmuch as the same was registered in 1991. 3. Plaintiff challenged the authenticity of the Trust Deed and produced a certified copy of the same before the Court which was marked Exhibit on admission (emphasis by me). It was not denied that the deed was registered and the defendant was supposed to be in custody of the original deed inasmuch as the same was registered in 1991. The learned Appellate Court below relied on the certified copy of the said deed and held that since it was the onus of the defendant to produce the original deed and since they failed to produce it on the ground that the same was not delivered to them from the Registry Office, the learned Appellate Court drew adverse presumption and held that the defendant failed to discharge their onus by not producing the deed before the Court. 4. At the time when this appeal was admitted the following substantial question of law were framed (1) "Whether the learned Judge in the Lower Appellate Court substantially erred in law in drawing an adverse inference against the appellants for non-production of the original Deed of Trust dated March 19, 1991 when it was not entered into the volume but was lying in the Office of Additional District Sub-registrar. (2) Whether the learned Judge in the Lower Appellate Court substantially erred in law in issuing the onus on the defendants to establish that their father actually executed the Deed of Trust dated March 19, 1991. (3) Whether the learned Judge in the Lower Appellate Court below substantially erred in law in accepting the plea of the plaintiffs that the father was mentally incapable to execute the Deed of Trust dated March 19, 1991 in the absence of any evidence on record." 5. Before the appeal was admitted it appears from the record that an application being C.A.N. 1929 of 2011 was filed by the appellant on 23rd February, 2011 by which the petitioner prayed for producing additional evidence under the provision of Order XLI Rule 27 of the Code of Civil Procedure. The said application is taken up along with hearing of the appeal. It is the appellants' plea that although, in 1991 the Deed of Trust was registered but they applied to get delivery of the original deed and thereafter only in 2011 the registered original deed was handed over to the appellant. The said application is taken up along with hearing of the appeal. It is the appellants' plea that although, in 1991 the Deed of Trust was registered but they applied to get delivery of the original deed and thereafter only in 2011 the registered original deed was handed over to the appellant. If the application under Order XLI Rule 27 of the Code is allowed then the entire matter can be revived only after allowing the defendant to produce the original deed before the Court below by making it an exhibit and allowing the other party to cross-examine the witness in support of the defendant. If the application fails then this appeal independently has got no merit because fact remains the defendant did not discharge their onus to produce the original deed before the Court allowing the plaintiff to prove the case that this was not the signature on the deed of their father. Now the question arises whether the defendant should get an opportunity to prove the original deed on record for the purpose of examination and cross-examination by the parties after about 28 years of the execution and registration of the document. 6. In deciding the Second Appeal this Court restricts it within the ambit of application under Order XLI Rule 27 of the Code whether this Court allows the defendants a chance to produce the original deed before the Court to enable the plaintiff to prove that the signature which was made by their father is not signed by him. The father is no more in this world. However, it is submitted at the bar, although, not pleaded in the application under Order XLI Rule 27 of the Code, that witnesses are available to identify the signature of the author of the Trust Deed. Be that as it may I will first consider whether the application under Order XLI Rule 27 should be allowed or not. Order XLI Rule 27 of the Code Civil Procedure is set out below: "O. XLI R.27. Production of additional evidence in Appellate Court. Be that as it may I will first consider whether the application under Order XLI Rule 27 should be allowed or not. Order XLI Rule 27 of the Code Civil Procedure is set out below: "O. XLI R.27. Production of additional evidence in Appellate Court. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, but if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." 7. Learned Advocate appearing for the appellant submitted that even if the appeal on merit is not interfered with by this Court but there are substance if application under Order XLI Rule 27 is allowed meaning thereby if this Court in Second Appeal permits the appellant to adduce additional evidence. Order XLI Rule 27 is not the way of producing evidence in a routine manner but it is by way of an exception only. So keeping that in mind I will justify whether the facts and circumstances pleaded in the application under Order XLI rule 27 the plaintiff has been able to make out sufficient ground to convince this Court to allow him to produce additional evidence within the purview of Order XLI Rule 27 of the Code of Civil Procedure. In this case it is not disputed that the registration of the document was made on 19th March, 1991. In this case it is not disputed that the registration of the document was made on 19th March, 1991. In the application under Order XLI Rule 27 of the Code the defendant/appellant has stated in the application that: (1) "...Original Trust Deed was lying in the Office of Additional District Sub-registrar, Kaliachak, Malda." (2) "...Original Trust Deed therefore, registered in the Office of Deputy Registrar, Kaliachak, having Book no.1, Volume no.1, pages 15 to 23 being No. 3860 for the year 1991 and the petitioners had obtained the said Original Trust Deed after filing of the present appeal being S.A.T. No. 45 of 2011." (3) "The petitioners state that the registration was affected on 7th April, 2011." (4) "The petitioners state that such evidence would not produced before the learned Court below after exercising the due diligence and consequently the petitioners had taken out the present application for production of additional evidence in the Appellate Court." 8. A Xerox copy of the original deed has been annexed to the original which shows that the document was entered into the volume and the deed number reflects the number of the year 1991. Once this is done, on what basis the petitioner can claim that the document was registered only in 2011 after the first appeal was disposed of is not conceivable. Simply because an illegible seal of some Additional Sub-registrar appears at the last page on 7th April, 2011 with some initial it cannot be said that the document was registered on 7th April, 2011. If a document is not registered it is unbelievable that certified copy will be provided by the Registration Office. More so, no attempt was made by the defendant to adduce any evidence from the Office of the Sub-registrar that such deed was lying pending before it and only in 2011 it was registered. Therefore, this ground is not tenable at all to entertain additional evidence. The appellant/petitioner has filed a supplementary affidavit to make his case better. More so, no attempt was made by the defendant to adduce any evidence from the Office of the Sub-registrar that such deed was lying pending before it and only in 2011 it was registered. Therefore, this ground is not tenable at all to entertain additional evidence. The appellant/petitioner has filed a supplementary affidavit to make his case better. In the supplementary affidavit wherein it has been agitated that the appellant was diligent to obtain the original Trust Deed and to that effect a letter was addressed to the Inspector General of Registration Department, Government of West Bengal for delivery of deed but the Original Trust Deed was handed over on 7th April, 2011 over which the appellants had no control and the said deed was obtained after filing of the present Second Appeal. From Annexure X-1 to the said supplementary affidavit it is undisputed that the IGR copy was lying with the appellant/petitioner it was never produced before the learned Court below to show that the registration of the deed was pending before the Registry Office. Resulting thereby they were unable to produce the Original Trust Deed before the Court, no such attempt was made. Even this was not submitted before this Court through the witness adduced by the defendants. A letter has been annexed to the supplementary affidavit which was addressed to Additional Sub-registrar, Kaliachak Sub-registry Office, Malda on 4th March, 2011 which disclosed that for the first time application was made on 20th January, 2011 to get the Original Deed back. The Application was made to the Inspector General of the Registration Department only on 14th March, 2011. Therefore, it is not known as to why the defendants/appellants/petitioner did not obtain the Original Trust Deed from the Office where it was registered. And as to why an application was made for the first time to get back the Original only on 20th January, 2011 after about 20 years of the execution of the deed and more so, after the first appeal has been disposed of. 9. Mr. Bhattacharyya, learned Senior Advocate in support of his application to produce additional evidence has relied on the following decisions: * Jaipur Development Authority -Vs. - Kailashwati Devi (Smt.) reported in (1997) 7 SCC 297 ; * Mrutunjoy Lenka and Ors. -Vs. - Gagan Kishore Swain (dead) and Ors. reported in AIR 1995 Orissa 71 and * Lachman Singh and Ors. -Vs. - Kailashwati Devi (Smt.) reported in (1997) 7 SCC 297 ; * Mrutunjoy Lenka and Ors. -Vs. - Gagan Kishore Swain (dead) and Ors. reported in AIR 1995 Orissa 71 and * Lachman Singh and Ors. -Vs. - Hazara Singh and Ors. reported in (2008) 5 SCC 444 The decision in Jaipur Development Authority (supra) it is in paragraph 6 says that the sub-rule (aa) under rule 27 it is mentioned the conditions which must be complied with by the party producing additional evidence, namely, that "notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him". The decision does not favour Mr. Bhattacharyya at all. 10. The decision in Mrutunjoy Lenka (supra) a Single Bench of Orissa High Court is also not helpful to support Mr. Bhattacharyya inasmuch as in that decision rejection of an application for adducing additional evidence was made before starting of judgment by the Appellate Court. And that too the petitioner in the revisional application urged that the document sought to be relied on was a public document which is admissible in evidence. The situation is completely different in the present case. The three conditions on which an additional document can be entertained is hopelessly absent in the present case. 11. The decision in Lachman Singh (supra) is equally not applicable in the present case where the Hon'ble Apex Court held that High Court was wrong in disallowing a mortgage deed to be brought on record inasmuch as the suit was one filed for redemption of mortgage and question arose whether the suit was filed beyond 60 years which is the period of limitation. Therefore, this relates to the jurisdiction of the Court whether the suit can be entertained beyond the period of limitation or not. Therefore, it is the Court's requirement the document was allowed to be filed but the determination of the fate of the suit. This judgment is distinguishable on fact and does not help Mr. Bhattacharyya at all. 12. I have not found any satisfactory answer from the learned counsel for the appellant as to why the document when registered in 1991 it was entered into the volume, certified copy was obtained by other side, application was made by the appellant for taking back the original only in 2011. Bhattacharyya at all. 12. I have not found any satisfactory answer from the learned counsel for the appellant as to why the document when registered in 1991 it was entered into the volume, certified copy was obtained by other side, application was made by the appellant for taking back the original only in 2011. In my view, cannot be considered that the appellants were diligent at all to produce this Deed before the Court at the earliest possible time. The application under Order XLI Rule 27 is liable to be rejected. 13. Under provisions of Order XLI Rule 27 of the Code, production of additional evidence, whether oral or documentary, is permitted in three circumstances: (i) The trial Court has refused to admit the evidence though the same ought to have been admitted; (ii) The evidence was not available to the party despite exercise of due diligence and (iii) The Appellate Court required the additional evidence so as to enable it to pronounce better judgment or for any other substantial cause of like nature. 14. Additional evidence in appeal may be admitted to clear up the obscure areas of evidence but it cannot be allowed to fill in lacuna. If all the above conditions of Order XLI Rule 27 are satisfied only then the Court had jurisdiction to permit additional evidence. 15. In a situation where the documents sought to be adduced as additional evidence, like the present one, though available with the party were not filed and the Lower Court was able to pronounce judgment after considering the material on record, additional evidence would not be taken in appeal. If the Court requires a document or a witness to be examined, additional evidence can be admitted. Party should not be allowed to fill up the lacuna at the appellate stage. Similarly, an application for production of additional evidence cannot be allowed if the appellant was not diligent in getting the document proved in the Lower Court. Section 107 of Code of Civil Procedure enables the Appellate Court to take additional evidence or requires such other evidence to be taken subject to such conditions and limitations as are prescribed under Order XLI Rule 27. Principle to be observed ordinarily is that the Appellate Court should not travel outside the record of the Lower Court and cannot take evidence on appeal. Principle to be observed ordinarily is that the Appellate Court should not travel outside the record of the Lower Court and cannot take evidence on appeal. Section 107 (d) is an exception to the general rule, an additional evidence can be taken only when the conditions and limitations laid down in the said rule are found viable. The Court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled as of right to the admission of such evidence and the matter is entirely in the discretion of the Court, which is of course to be exercised judicially and sparingly. Even after exercising such authority judicially I do not find any reason to admit the additional evidence after 20 years of the document registered before the Registration Office. 16. The application fails and is dismissed. 17. On the merit of the appeal I like to answer the substantial question of law. The first substantial question is "whether the learned Judge in the Lower Appellate Court substantially erred in law in drawing an adverse inference against the appellants for non-production of the original Deed of Trust dated March 19, 1991 when it was not entered into the volume but was lying in the Office of The Additional District Sub-registrar". Adverting to this question it is undisputed fact that registration was completed on 19th March, 1991 inasmuch as a certified copy of the said deed was tendered before the trial Court by the plaintiff/respondents and on admission the document was marked Exbt.1. While the plaintiffs claimed that a Will was executed by Chandi Pada Chakarborty by which the property was equally distributed to all his legal heirs and he did not deprive anyone. The said Will was also tendered by the plaintiff before the trial Court and had been marked as Exbt.2. When registration of the deed is admitted and plaintiff challenges the execution of the said deed by Chandi Pada Chakraborty and defendant claims that Chandi Pada Chakraborty executed the Trust Deed in their favour and when they admit the contents of the deed it is the duty of the defendants to produce the original deed and to prove execution thereof by Chandi Pada Chakraborty in terms of Section 68 of the Indian Evidence Act. The defendant never endeavoured to produce the original Trust Deed knowing fully well that the document was admitted for registration in 1991, it was written in the volume, certified copy was supplied but no explanation was offered before the Court. None of their witnesses did mention that for un- avoidable circumstances they could not get the original deed from the Registration Office. It is required to be taken note of that DW1 in his cross- examination deposed that he could not remember the name of the witness on such deed. He also failed to remember the name of the identifier of his father's signature on the Trust Deed. Significantly witness no.1 stated in his evidence that during execution of the Trust Deed only the defendants were present which necessarily means that there was no other person to witness the purported execution of the Trust Deed. Therefore, a reasonable suspicion arises whether such deed was at all executed by Chandi Pada Chakraborty, their father. In such a situation whether onus lies upon the defendant who is supposed to have the original deed with them, to produce it before the Court for its inspection and to prove that the deed was executed by their father. The learned trial Court has held that it is the plaintiffs' onus to prove that the deed was not signed by Chandi Pada Chakraborty as the plaintiff filed the suit but the trial Court did not consider for a moment that if the original deed is not produced the plaintiff cannot prove the same and the trial Court has also not considered the consequence of admitting the certified copy into evidence and marking of it as Exhibit. 18. As rightly pointed by Mr. Chakraborty learned counsel appearing for the respondent that when plaintiff had denied the execution of the document in question (Trust Deed), particularly saying that this was never signed by their father and when it is undisputed that the registered deed was in the custody of the defendant and when it was admitted that the deed was registered in 1991. When the suit was filed in 2000, it was the duty of the defendants to produce the original to prove the genuineness. In support of his such submission Mr. Chakraborty has drawn attention of this Court to a decision in the case of Rosammal Issetheenammal Fernandez (dead) by LRS. and Ors. -Vs. When the suit was filed in 2000, it was the duty of the defendants to produce the original to prove the genuineness. In support of his such submission Mr. Chakraborty has drawn attention of this Court to a decision in the case of Rosammal Issetheenammal Fernandez (dead) by LRS. and Ors. -Vs. - Joosa Mariyan Fernandez and Ors. reported in (2000) 7 SCC 189 , in this decision the Hon'ble Supreme Court dealing with a case where appellants filed a suit for partition of the suit property claiming a certain share therein by succession and also challenged execution of a gift deed and a settlement deed. With reference to the gift deed, in the absence of any of the attesting witnesses being examined, the High Court, relying on a portion of the evidence of one of the plaintiff's witnesses, observed that it was difficult to infer a specific denial of the execution of the document. The High Court held that the proviso to Section 68 of the Evidence Act would apply. The Hon'ble Apex Court while allowing the appeal on this point whether proviso to Section 68 of the Evidence Act would apply or not has held that when there is clear denial of the execution of the documents by the plaintiffs, the High Court fell in error in applying the said proviso which on the facts of the case would not apply. The Hon'ble Apex Court held if the attesting witnesses could not be produced and once the gift deed could not be tendered in evidence, in view of the non-compliance of Section 68 of the Indian Evidence Act the plaintiffs challenge in suit appears to be successful. The Hon'ble Apex Court held the gift deed cannot be relied on. Therefore, this fact and the ratio decided by the Hon'ble Apex Court in this case squarely applies in our case. 19. In the present case the plaintiff complained that the signature on the Trust Deed was never made by their father Chandi Pada Chakraborty. They challenged the genuineness of the Trust Deed which was registered in 1991 and the defendants admitted the contents thereof by admitting certified copy of the said deed to be marked as an exhibit. The learned Appellate Court below rightly set aside the decree passed by the trial Court where it was held that the deed was a genuine one. They challenged the genuineness of the Trust Deed which was registered in 1991 and the defendants admitted the contents thereof by admitting certified copy of the said deed to be marked as an exhibit. The learned Appellate Court below rightly set aside the decree passed by the trial Court where it was held that the deed was a genuine one. Applying the said ratio of the Hon'ble Apex Court it can be safely held that the plaintiff has been able to prove that the deed was not genuine and that the defendants have failed to discharge their onus to prove otherwise. In such view of the matter the first substantial question of law is answered in the negative. And I hold that the learned First Appellate Court has not committed any error of law in reversing the finding of the trial Court. 20. So far the second substantial question law as to whether the learned Appellate Court substantially erred in law in shifting the onus on the defendants to establish that their father actually executed the Deed of Trust dated 19th March, 1991 the answer have already given while dealing with the first question because exactly the same thing has been done by the Hon'ble Apex court in the above mentioned decision in the case of Rosammal Issetheenammal Fernandez (supra). 21. So far the third substantial question of law, in my considered view the question whether the father of the plaintiffs was mentally incapable to execute the deed of trust dated 19th March, 1991 in absence of any evidence on record need not be gone into inasmuch as when it is answered that execution has not been proved the question of mental fitness need not be gone into and this will be an unnecessary exercise. Therefore, this substantial question of law is also answered in the negative. 22. The appeal fails and accordingly dismissed. Let a decree be drawn up accordingly. 23. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.