JUDGMENT R.B. Dixit, J. 1. Feeling aggrieved by judgment and decree dated 15-2-1995 passed in Civil Appeal No. 2-A/94 by Fifth Additional Judge to District Judge, Gwalior, whereby decree and judgment of Ninth Civil Judge Second Class, Gwalior, passed in Civil Suit No. 228A/94 was confirmed, the defendant-appellant has come up in appeal praying for dismissal of the suit of the plaintiff-respondent. 2. The plaintiff-respondent had filed a civil suit against the appellant seeking relief of perpetual injunction restraining defendant from making any interference in the suit plot allegedly obtained by him on 30 years' lease from the Government of Madhya Pradesh Nagariya Kshetron Ke Bhumiheen Vyakti. (pattadhriti Ka Pradan Kiya Jana Adhikaron) Adhiniyam, 1984. According to the plaint averment, plaintiff was granted patta of a plot measuring 8.50 x 6.50 meters whereon he had constructed a Pator and Chhapar over the said plot. The defendant's house is situated in the north of the suit plot in the Shabad Pratan Ashram and defendant had raised a wall on the suit land causing interference in possession of the plaintiff. 3. The resume of the written statement was that plaintiff is in possession of the suit plot and no lease was granted to him by the Govt. of M.P. further alleging that the patta in question is a vague deed having no record of its being granted to the plaintiff by the concerned department. The portion of land where defendant's house opens towards the suit land is being used for her passage. The door, window and passage had existed for more than 30 years. 4. The learned trial Court after recording the evidence of the parties, decreed the plaintiffs suit and restrained defendant-appellant permanently from making any interference in plaintiff enjoyment of the suit plot. In appeal, the decree of the trial Court was also confirmed as referred hereinabove. 5. This appeal has been admitted on the following substantial questions of law: A. "Whether on failure to produce original deed of lease, Courts below were right in holding that plaintiff has proved lease in his favour from the Govt. ? B. Whether in the absence of original lease deed photocopy can be exhibited and on the basis of photocopy the plaintiffs suit can be decreed ?" 6. Plaintiff Gambhira (P.W. 1) has produced the photocopy (Ex. P-l) of the lease deed alleged to have been granted by the State Govt. ? B. Whether in the absence of original lease deed photocopy can be exhibited and on the basis of photocopy the plaintiffs suit can be decreed ?" 6. Plaintiff Gambhira (P.W. 1) has produced the photocopy (Ex. P-l) of the lease deed alleged to have been granted by the State Govt. on 22-4-84 and he has further produced the photocopy of receipt (Ex. P-2) in respect of the tax of Municipal Corporation, Gwalior, wherein S.N. of the lease has also been mentioned. He has not shown original lease (patta) in the Court. Tax Collector of Municipal Corporation, Gwalior, Om Prakash Shivhare (P.W. 2) has proved realisation of annual rent from the plaintiff in respect of Jhuggi Jhopdi. However, he himself had never realised any tax. He has simply proved entries of a register in respect of the rent. 7. Witness Narayan Prasad (P.W. 3) had also received patta alongwith the plaintiff, but he could not ascribe the area, which was allotted to him. According to him, the dispute started when defendant tried to break open boundary of Shabd Pratap Ashram situated near the house of the plaintiff. It means that there is a dispute of boundaries between the parties. 8. Defendant Sushma (D.W. 1) had admitted that the plaintiff is residing on the disputed plot for the last 15-20 years. Ashish Rajput (D.W. 2) enquired about patta of the plaintiff from the Nazul Department, but he was told that no patta was granted to the plaintiff. Ramesh Singh (D.W. 3) had applied to get the certified copy of patta, if granted to the plaintiff through an application (Ex. D-l); and he was given a certificate (Ex. D-2) to the effect that plaintiff had been granted no patta of which a copy was sought for. 9. It has been contended for the learned counsel of the appellant-defendant that where the plaintiff has failed to prove his possession on the basis of the alleged lease deed granted to him, he cannot be allowed to challenge the right of way accruing by long use to the defendant. I am of the considered view that the plaintiff has failed to prove the basis of his possession on account of non-production of original lease deed and also in proving it by producing any witness of the department concerned. I am of the considered view that the plaintiff has failed to prove the basis of his possession on account of non-production of original lease deed and also in proving it by producing any witness of the department concerned. The Apex Court in case of Roman Catholic Mission v. State of Madras, reported in observed that where no original document was produced, no foundation was laid to establish the right to give secondary evidence. In the circumstances, copies of original documents are not admissible in evidence. Similarly, in another case of Gopal Krishnaji v. Mohd. Haji Latif, reported in the Apex Court held that where a party had not produced the best evidence, which could have thrown light on the issue in controversy, the Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him. The party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it. 10. In my opinion although the plaintiff-respondent had failed to prove his title on the disputed plot, but the admission of the defendant that he was residing there since long, he cannot be dispossessed from that place without recourse to law and in the circumstances, the defendant cannot assert a right to pass from the disputed land merely on the ground that it is a Govt. land and plaintiff is an encroacher. In my opinion, there seems to be a dispute of boundaries between the house of the defendant and the plot alleged to have been allotted by the Government to the plaintiff. 11. The Gujarat High Court in its decision in the case of Parmar Gogji Kana v. Parmar Ganesh Moti, reported in observed that where in a suit for injunction restraining defendant from using and occupying open space in front of defendant's house, the onus to prove that title and ownership over such open land is with the plaintiff, is on the plaintiff. Where the plaintiff had no document of title to show ownership over the open space in front of the defendant's house, but on the other hand, the user by the defendant of that space showed his ownership over the same and there could be no claim of plaintiff s adversely holding it, and the lower Courts ignored this aspect of burden of proof resulting in gross injustice. In the circumstances of the case, interference by High Court in second appeal was justified though the finding was one of fact. 12. In a decision rendered by Allahabad High Court in the case of Dhanya Kumar v. Rajendra Prasad, reported in it was pointed out that in a suit for perpetual injunction, it is incumbent on the plaintiff to affirmatively establish the right on the basis of which he claims to restrain the defendant from opening the ventilators merely on the ground that the latter could look at the chabutra of the former, the plaintiff, in such circumstances, could not get any right to have the ventilators closed and consequently was not entitled for perpetual injunction to that effect. 13. In another decision of Allahabad High Court in case of Abdul Sattar v. Chhaji Lal and Ors., reported in it was held that every person has a right to open as many windows in his wall as he likes; he may even demolish the entire wall. His neighbour cannot compel him to make the wall or close the window. The neighbour may protect his privacy by making the wall on his own land. 14. So far as the present case is concerned, since the plaintiff had failed to implead Government as a party and further he failed to prove that the alleged construction was made by the defendant on the portion of the disputed plot, the learned both the Courts below had erred in law in holding defendant liable to be restrained from making any interference in possession of the plaintiff-respondent. In case of such a boundary dispute, it is always open to the parties to approach the concerning authorities for demarcation of the boundary between them and further to apply for necessary action against the encroacher, if any. The suit of the plaintiff must fail on account of failure to prove his title as well as his right to occupy the plot in dispute. 15. Except the observations made hereinabove, this appeal is allowed and the impugned judgment and decree of the Court below is set aside.