JUDGMENT 1. - Heard learned counsel for the parties.The plaintiff is aggrieved against the dismissal of his suit by the trial court by judgment and decree dated 29.9.02 and dismissal of his first appeal by District Judge, Balotra vide judgment and decree dated 28.7.C1. 2. It would be relevant to give facts of the case. Earlier to present suit the defendant No. 1 (now deceased) Govarmal filed the suit No. C.O. 43/82 for possession against the defendant No. 5 (now deceased) Laxman as alleging that defendant Laxman was tenant of plaintiff Govarmal. The grounds for eviction of that suit are not relevant for the purpose of deciding this 10 appeal. The facts relevant are that the suit No. 43/82 was decreed by the trial court on 25.4.84 in favour of the plaintiff Govarmal. The defendant Laxman Das preferred an appeal which was dismissed by the First Appellate Court on 17.1.85 against which the defendant Laxman Das preferred second appeal which was dismissed by the High Court on 29.7.85. The review petition against the judgment dated 29.7.85 was also filed by Laxman Das which too was dismissed by the High Court on 26.5.88. In execution of the said decree tenant defendant Laxman Das was evicted from the premises on 31.7.88 and possession of the rented premises was delivered to Govarmal through his son. 3. The present plaintiff Narsinghdas is son of above Laxman Das. The present plaintiff Narsingh Das filed the suit before the trial court alleging therein that he is tenant in one of the shop since 1982. He took the premises on rent from Govarmal, defendant No. 1 in present suit. Originally the tenancy was oral but at the request of the defendant No. 1 Govarmal plaintiff Laxman Das executed a rent deed on 3.6.84. It is also alleged that plaintiff Laxman Das was regularly paying the rent till 1988. On 28.7.88 the defendant number one's son came to the plaintiff Narsingh Das and requested him to vacate the rented premises and ensured the plaintiff that there is no intention of Govarmal or Govarmal's son to evict the plaintiff Laxman Das from the suit premises despite the fact that there is a decree against the plaintiff's Laxman Das's father obtained by Govarmal. According to the plaintiff, the plaintiff's father's relation with the plaintiff was not going well, therefore, plaintiff started living separately and was running his radio service shop in the name of Pappu Radio Service in the disputed premises but defendant No. 1 Govarmal and defendant No. 2 father of the plaintiff conspired and in consequence thereof, without impleading plaintiff as party, decree was obtained. It is also stated by the plaintiff that defendant number one's son informed the plaintiff that execution case No. 48/85 filed by the Govarmal Is pending in the court of Munsif Balotra against plaintiff's father Laxman Das. It is submitted that when on 31.7.88 the person from the court came on spot to take possession of the plaintiff's shop, he immediately, on the same day, submitted an application before the learned Munsiff at his residence Informing that Govarmal, in execution of his case against defendant No. 2 Laxman Das wants to evict plaintiff from his shop. In these circumstances, the plaintiff filed the suit for declaration as well as for grant of injunction against Govarmal and impleaded Laxmandas also as party. 4. The defendant No. 1 submitted written statement and contested the case of the plaintiff by saying that plaintiff Narsingh Das was not tenant of Govarmal defendant No. 1 nor he was in possession of the property In dispute. It is also stated that suit was filed by the defendant No. 1 against defendant No. 2 (father of plaintiff) which was decreed up to the High Court. In the High Court defendant No. 2 sought time to vacate the premises and court .granted nine months' time to defendant No. 2 for vacating the premises. Even In execution defendant No. 2 submitted an application on 5.7.88 and further sought time but executive court rejected that application by order dated 28.7.88. On 31.7.88 the decree was executed with the help of Nazir and for that purpose police help was taken. The possession was delivered to defendant number one's son but on 26.8.88 plaintiff Narsingh Das encroached upon the shop in dispute and filed the present suit. The defendant No. 1 lodged F.I.R. against the plaintiff upon which-challan was filed against the plaintiff. 5. The possession was delivered to defendant number one's son but on 26.8.88 plaintiff Narsingh Das encroached upon the shop in dispute and filed the present suit. The defendant No. 1 lodged F.I.R. against the plaintiff upon which-challan was filed against the plaintiff. 5. It Is further submitted that since that plaintiff illegally encroached upon the defendant number one's shop, therefore, the defendant No. 1 subsequently filed the suit for recovery of possession under Section 6 of the Specific Relief Act which was decreed in favour of the defendant No. 1 on 29.9.2000. The said decree is final and has not been challenged by the plaintiff, therefore, the plaintiff is not entitled for any relief. In these circumstances, the defendant No. 1 prayed that suit of the plaintiff be dismissed. 6. The defendant No. 2 judgment debtor in civil original suit No. 43/82 and father of the plaintiff substantially admitted the case of the plaintiff by admitting that plaintiff is tenant and is in possession of the shop in dispute and plaintiff was paying the rent of the shop. He denied any conspiracy with defendant No. 1. The plaintiff also submitted rejoinder to the written statement of the defendant No. 1 and the trial court framed issue wherein the plaintiff examined himself and his six other witnesses. The plaintiff also produced certain documents. The defendant No. 1 produced three witnesses and his documents, for defendant No. 2 DW 2/1 Purhottam was examined. 7. The trial court held that plaintiff failed to prove that he was in occupation in the suit premises as tenant.. The trial court also relied upon the statements of the defendant No. 1 and witnesses produced by the defendant and the documents produced by the defendant No. 1. The trial court refused to rely upon the decision given in criminal case whereby the criminal court acquitted the plaintiff in the case alleged by the defendant No. 1. Ultimately the suit of the plaintiff was dismissed by the judgment and decree dated 29.9.2000. 8. The plaintiff preferred an appeal which was dismissed by the First Appellate Court on 28.7.01. The learned counsel for the appellant vehemently submitted it both the courts below have committed grave error of law in not permitting the plaintiff to produce secondary evidence about the rent deed dated 3.6.84. 8. The plaintiff preferred an appeal which was dismissed by the First Appellate Court on 28.7.01. The learned counsel for the appellant vehemently submitted it both the courts below have committed grave error of law in not permitting the plaintiff to produce secondary evidence about the rent deed dated 3.6.84. It is submitted that the plaintiff alleged that the decree passed on dated 3.6.84 is with the defendant No. 1 and after death of defendant No. 1 rent deed is with the one of the son of defendant No. 1. The plaintiff served a notice upon the defendant No. 1 to produce the documents but he denied even the existence of the documents. In these circumstances, the courts should have permitted the plaintiff to produce secondary evidence as plaintiff complied with the requirement given under Section 65. Learned counsel for the appellant relies upon the judgment of Hon'ble Apex Court delivered in case of Nawab Singh v. Inderjit Kaur, reported in AIR 1999 SC 1668 wherein also tenant alleged that original rent note was in possession of the land lord but the court refused the permission on the ground that said rent note is doubtful. The Hon'ble Supreme Court allowed the appeal and permitted secondary evidence in that case. Learned counsel for the appellant further vehemently submitted that the decree dated 19.9.2000 passed in the suit filed by the defendant No. 1, against the plaintiff, under Section 6 of the Specific Relief Act and which attained the finality, is nullity in view of the bar created by Section 13 of the Raj. Premises (Control of Rent and Eviction Act, 1950. As there exists no ground for passing the decree under the said provision and the plaintiff is tenant in occupation, therefore, the decree under Section 6 is nullity. 9. Learned counsel for the appellant also submitted that the entire claim of the defendant No. 1 that possession of the premises was taken over in execution on 31.7.88, is only a paper work and in fact no possession was taken. 10. 9. Learned counsel for the appellant also submitted that the entire claim of the defendant No. 1 that possession of the premises was taken over in execution on 31.7.88, is only a paper work and in fact no possession was taken. 10. It is also submitted that admittedly decree was in favour of the defendant No. 1 Govarmal whereas possession was delivered to Govarmal's son which could not have been done and possession could have been delivered only to the decree holder, therefore, the said proceedings of taking over possession is legal and defendant No. 1 cannot take benefit of said illegal proceedings. 11. In reply to above, learned counsel for the respondents submitted that the trial court considered all the documents placed on record and relied upon the evidence of the defendant number one's witnessess and found from the evidence of the plaintiff's witnesses that they could not prove that plaintiff was not in possession as tenant in the shop in dispute. Learned counsel for the respondent No. 1 pointed out that even before suit No. 43/82, a suit No. 157/77 was filed by the defendant No. 1 against the defendant No. 2 father of the plaintiff, wherein benefit of first default was given by the court in its judgment dated 16.4.81. The defendant No. 2 in that suit as well as in the Civil Original Suit No. 43/82 specifically admitted his tenancy in the premises in dispute not only in proceedings but even in its statement before the court on 17.2.84 by specifically saying that defendant No. 2 Laxman Das is in occupation in two shops and one room on first floor and is putting rent of these three premises. 12. In view of the above statement which was relied upon by two courts below, the finding of fact was recorded that the defendant No. 2 was tenant in the disputed premises also and consequence thereof it is proved by positive evidence that plaintiff was not tenant in the premises. It is also submitted that defendant No. 1 placed on record as many as three rent deeds executed by none else than father of the plaintiff that too in the year 1960, 1965 and lastly in the year 1974. The copies of the rent deed was produced as Ex. A-5 and all the relevant documents were also placed on record by defendant No. 1. The copies of the rent deed was produced as Ex. A-5 and all the relevant documents were also placed on record by defendant No. 1. In the light of above documents, if two courts below have recorded any finding of fact, this cannot be interfered by this Court under Section 100 CPC. 13. Learned counsel for the respondents also submitted that in a case where document sought to be produced is of doubtful nature and character and its existence itself is doubtful, then it is not necessary for the court to permit any party to produce secondary evidence. 14. I have considered the rival submissions and perused the facts in details. The broad facts which cannot be ignored are that the defendant No. 1 filed the suit against the defendant No. 2 in the year 1982 wherein he described the property and plaintiff's father did not plead that the shop in dispute is not in the tenancy of the plaintiff's father and it is also not stated that present plaintiff is tenant in occupation of the shop. The father of the plaintiff in his statement on oath in suit against him, also admitted that he is tenant in two shops and one room on first floor. He sought time to vacate the premises in High Court in second appeal. He further sought time in execution proceedings by submitting an application in writing. A copy of the written statement filed by Laxman Das, copy of the judgment of the trial court and copy of the application submitted before the Executive Court for seeking time by the defendant No. 2 were placed on record as Ex.-7, A-8 and A-10. The defendant No. 1 also placed on record certified copy of the application and the copy of the order sheet Ex.A-12 by which the possession warrant was issued. The plaintiff in his plaint itself very specifically admitted that on the relevant date i.e. 31.7.81 one person from the court came to the shop of the plaintiff, therefore, this fact is proved that on 31.7.88 in pursuance of the order of the court, the person from the court went on the spot. The plaintiff in his plaint itself very specifically admitted that on the relevant date i.e. 31.7.81 one person from the court came to the shop of the plaintiff, therefore, this fact is proved that on 31.7.88 in pursuance of the order of the court, the person from the court went on the spot. So far as contention of plaintiff that he went to the residence of the learned Munsiff on 31.7.88 and submitted an application and pointed out that defendant No. 1 wants to evict the plaintiff illegally in execution is concerned, it is suffice to say that nothing has been brought on record that what happened to that application and what he did till 25.8.88 when he filed the present suit. 15. Another important relevant fact is that a decree has been passed by the civil Court in suit under Section 6 of the Specific Relief Act against the present plaintiff on 29.9.2000. The finding recorded in the judgment dated 29.9.2000 under Section 6 of the Specific Relief Act cannot be ignored because of the reason that in that proceedings only point for determination before the court was whether the plaintiff Narsingh Das forcibly took possession of the property from the defendant No. 1 Govarmal as alleged by Govarmal In his suit. The finding given by the Court in the suit of the defendant No. 1 against the plaintiff is binding and he is bound to deliver possession of the property to the defendant No. 1. However, after the decree under Section 6 of the Specific Relief Act, the plaintiff had a right to maintain the suit for declaration for getting the possession of the property by following process of law. Assuming for the sake of argument that his suit can be treated as a suit after decree passed under Section 6 of the Specific Relief Act, still the very foundation and basis of the claim of the plaintiff remains as it is and that is alleged tenancy right of the plaintiff in the premises. The entire controversy centres around before or after the decree under Section 6 of the Specific relief Act Is whether plaintiff is tenant of the defendant No. 1 in the premises. The two courts below concurrently decided this question of fact against the plaintiff. 16. The entire controversy centres around before or after the decree under Section 6 of the Specific relief Act Is whether plaintiff is tenant of the defendant No. 1 in the premises. The two courts below concurrently decided this question of fact against the plaintiff. 16. It is to be seen, whether courts below have committed any illegality in rejecting the application of the plaintiff seeking permission to produce secondary evidence. 17. It is true that in case document is in possession of other party, the party seeking production can serve a notice for production of the document and in view of the Sub-Section. A of Section 65 of the Indian Evidence Act, 1872 the party can be given permission for producing secondary evidence. It Is also true that in the judgment delivered in the case of Nawab Singh (supra) Hon'ble Apex Court held that the trial court was not justified in rejecting the prayer seeking production of the secondary evidence and Hon'ble Apex Court did not approve the grounds for rejection of the prayer by the High Court which was that the rent note sought to be produced by the appellant was of doubtful veracity. The Hon'ble Apex Court held that the court was not justified in forming that opinion without affording the appellant an opportunity of producing the secondary evidence. What has been laid down by the Hon'ble Apex Court is that the grounds given by the court for rejection of the prayer was not justified. The Hon'ble Apex Court has not laid down as a law that In all cases when it Is alleged that document is with the other party, then the court has got no option but to grant permission. It only means, normally permission may be given. Even a bare perusal of Section 65 itself makes it clear that this provision enables party to produce secondary evidence and this no where binds the court to permit party to produce secondary evidence in all cases. There may be circumstances where the document (copy of the alleged document) sought to be produced as secondary evidence itself may contain such facts which may make document as impossible document to be in existence. There may be circumstances other than the document in question Itself which may make the existence of the document as claimed impossible. There may be circumstances where the document (copy of the alleged document) sought to be produced as secondary evidence itself may contain such facts which may make document as impossible document to be in existence. There may be circumstances other than the document in question Itself which may make the existence of the document as claimed impossible. If in each and every case such type of permission is granted then it may result Into grave consequences, first, in all cases the court will have to take evidence about the existence of the document, second, it is in power and possession of the other party even in the cases, where circumstances already available on record with trustworthy evidence, (as in the case) are available which proves the fact otherwise than as set up by the plaintiff. In this case, two courts below refused the permission to the plaintiff to produce secondary evidence this court is exercising jurisdiction under Section 100 CPC and in view of the finding of fact recorded by the courts below which is based on the trustworthy documentary evidence including court orders and proceedings, having more credibility than any private document like rent deed are available on record, are sufficient to prove non- existence of the rent deed claimed by the plaintiff. Therefore, this court can certainly refuse to interfere in the judgments of two courts below who have refused the permission for producing the secondary evidence. 18. It is worthwhile to mention here that nothing has been said about the admission of the defendant No. 2 none else than the father of the plaintiff himself, that too in the written statement which he submitted in Civil Original Suit No. 43/82 and in which he admitted that he is tenant in the disputed shop. Nothing has been- said by the plaintiff about the fact admitted by the plaintiff's father in his statement on oath before the trial court as back as on 17.2.84 that he is tenant in the shop in dispute which plaintiff is claiming in his tenancy. What has been said by the plaintiff is that he was not carrying good relation with his father. Be that as it may the fact is that in this very suit the plaintiff's father admitted the case of the plaintiff by filing written statement. It is easy to level allegation on a person whose statement may not be helpful. What has been said by the plaintiff is that he was not carrying good relation with his father. Be that as it may the fact is that in this very suit the plaintiff's father admitted the case of the plaintiff by filing written statement. It is easy to level allegation on a person whose statement may not be helpful. It is also not uncommon to level the allegations against one's own kith and kin and against his own father and mother if it can give benefit. Nothing has been said even during the arguments that the relation with father and son was so hostile that father went to harm the plaintiff to the extent of giving favour to a person who has filed suit against him. Probably, because of reason that father, who was hostile since 1982 or even prior to that time was able to protect the possession of premises in his occupation including the present suit property by filing written statement, contesting the suit by filling an appeal and thereafter second appeal and thereafter review petition and not satisfied with that even by seeking time in execution and ultimately after failing in keeping the possession after 31.7.88 left with no option but to come out with the case in support of the present plaintiff. It is relevant circumstance to examine this that whether there could have been any rent deed In writing in the year 1984 and would not have been a defence of the plaintiff's father from the year 1982 till 1988. The -conduct of the plaintiff and defendant No. 2 speaks loudly against them. 19. In addition to above, there appears to- be no reason to disbelieve the court's proceedings wherein the decree was executed in total and there is no reason to disbelieve the documents whereby the possession of the shop in dispute was delivered to the defendant No. 1 in execution. If all these facts are ignored then only the existence of rent deed as claimed by the plaintiff can be presumed, ignoring the specific denial of the defendant that no such document is in existence. 20. For production of secondary evidence the existence of document is condition precedent. If all these facts are ignored then only the existence of rent deed as claimed by the plaintiff can be presumed, ignoring the specific denial of the defendant that no such document is in existence. 20. For production of secondary evidence the existence of document is condition precedent. This court in the facts of the case and in view of the findings recorded by the courts below and in view of the large number of trustworthy documents, is of the opinion that the courts below, if not permitted plaintiff to produce the secondary evidence to prove the rent deed, the courts below have not committed any illegality. The judgment of the Hon'ble Supreme Court, as mentioned above was given in the facts of the case and Hon'ble Supreme Court found that in the facts of that case, the court was not justified in forming opinion about nature of the document. Here in this case, the court below though observed that it is unbelievable that why the stamp was purchased from the different place and also made certain comments on the document. Even if these objections are ignored, the positive evidence available on record is sufficient for rejection of the permission to produce secondary evidence to the plaintiff appellant. 21. Next challenge to the judgment of the courts below is on the ground that no possession was delivered in execution of the decree. This ground is liable to be rejected as the entire tenure of the reasons based on oral and documentary evidence fully supports the concurrent finding of fact that possession of the property in dispute was delivered in the execution to the defendant No. 1. It is also submitted that no possession could have been given to the son of the decree holder in question and it should have been given to only decree holder is not a ground available to the plaintiff. The plaintiff can succeed only by proving his right to keep possession against the defendant No. 1. Unless plaintiff proves his right to remain in possession and further proves his possession on relevant date, he is nobody to challenge the procedure adopted in execution proceedings. 22. The plaintiff can succeed only by proving his right to keep possession against the defendant No. 1. Unless plaintiff proves his right to remain in possession and further proves his possession on relevant date, he is nobody to challenge the procedure adopted in execution proceedings. 22. Learned counsel for the respondents in some way right in saying that by above argument of the plaintiff, the plaintiff admitted that decree was in fact executed and possession was delivered, may it be to the son of the defendant No. 1 but fact remains is that possession was delivered in execution and even the plaintiff did not submit any objection in the executive petition except by filing an application without taking it to any logical end which only shows well calculated strategy to achieve the object of getting possession; by creating evidence and in that sequence only plaintiff might have submitted any application to the learned Munsiff at his residence. 23. In, view of the above, the courts below were right in holding that plaintiff has no right to raise objection about the procedure taken in the executive court in execution of the decree against the defendant No. 2 father of the present plaintiff. 24. It is worthwhile to mention here that all the points which have been raised by the appellant are the grounds on finding of fact and this court feels that there is no error committed by the courts below. The courts below are more right in dismissing the suit but, this court constrained to take note of the fact that despite recording finding of the facts by two courts below and despite the fact that both the, courts below found that the decree was passed for the suit premises as back as in the year 1988 and time was sought by none else than the father of the plaintiff for vacating the premises before High Court as well as before the executive court and there is finding in the suit filed under Section 6 of the Specific Relief Act that the plaintiff took possession illegally. The courts below merely dismissed the suit of the plaintiff without any compensation to the decree holder. The courts will if take such type of lenient views, the courts are not only giving benefit to the wrong doers but they are causing harm to the institution itself. What the. The courts below merely dismissed the suit of the plaintiff without any compensation to the decree holder. The courts will if take such type of lenient views, the courts are not only giving benefit to the wrong doers but they are causing harm to the institution itself. What the. defendant No. 1 should have got in his lifetime, he failed to get. What the legal representatives of the decree holder got, only litigation. Today also LR's of decree holder of the year 1988 `may' get property only. This gives complete benefit to the plaintiff who occupied the premises after the decree of the court till the legal representatives of the plaintiff will get the possession without there being any compensation to the decree holders. 25. In these circumstances and in view of the facts mentioned above though the appeal is dismissed at the admission stage but is dismissed with the cost of Rs.10,000/-. *******