PER COURT :- Heard learned counsel for the respective parties at length. 2. Legal heirs of original defendant are the appellants herein respondent is the original plaintiff. The parties are referred as to their original status in the suit. 3. The plaintiff has filed Regular Civil Suit No. 209 of 1999 ("RCS") 29-7-1999 for possession and injunction. The suit property comprises a piece land admeasuring 6000 sq.ft. out of S. No. 55/2-B situated at village Deo District Dhule ("suit property"). It is pleaded by the plaintiff that he purchased the land, jointly with four other persons, on 21-7-1986, out of S. 55/2-B totally admeasuring 1 Hectare and 55 Ares, from one Bhanu. The plain and other co-owners subsequently partitioned the suit property, after development. The suit property reserved for school building and playground also part and parcel of said S. No. 55/2-B. After partition between the plain and other co-sharers, the suit property was allotted to the share of the plain and is in his possession. According to the plaintiff, defendant has committed encroachment and constructed three sheds admeasuring 12x15, 18x20 and 20x feet so also started brick kiln in the suit property. The plaintiff had brought these facts to the notice of the Municipal Council, Dhule, Officers of the Dhule Municipal Council tried to take act against the defendant but in vain. The plaintiff addressed a notice, dated 1 1999 through Advocate. Brick kiln started by the defendant in the suit property also a cause for pollution in the vicinity. With these pleadings, the plaintiff sought a relief of mandatory injunction by removing the sheds constructed by defendant and for possession of the suit property. A perpetual injunction was sought against the defendant from carrying out any construction over the property. 4. Original defendant died during pendency of the suit and his legal were brought on record. The legal heirs entered appearance and filed their writ statement at Exhibit 29 on 3-5-2001. A perpetual injunction was sought against the defendant from carrying out any construction over the property. 4. Original defendant died during pendency of the suit and his legal were brought on record. The legal heirs entered appearance and filed their writ statement at Exhibit 29 on 3-5-2001. After denial, it is pleaded in paragraph 11 of the written statement that the suit is not properly valued, other co-sharer S. No. 55/2-B are not joined as parties, sale deed dated 21-7-1986 is referred by the plaintiff in the suit but it is not clarified as to from whom the suit pro is purchased, the possession of the suit property was not handed over to plaintiff at the time of the sale deed, the brick kiln in the suit property is old prior to the sale deed of the suit property in favour of the plaintiff and cash and that the land to the tune of 36 Ares out of S. No. 5512-B was reserved by State Government. Despite the reservation, sale deed could not have executed by erstwhile owner in favour of the plaintiff and therefore, according the defendants, the sale deed is illegal. Partition of the land S. No. 55/2-B inter between the plaintiff and co-sharer is denied. Reservation of suit property was school and play ground and that the defendants have not committed encroachment over the plaintiffs property and that the possession of the property to the extent of 6000 sq.ft. was never handed over to the plaintiff. 5. The trial Court considering the pleadings of the parties, framed issues. Issue No. 1 was in respect of the claim of the plaintiff to have purchase the suit property by registered sale deed dated 21-7-1986. The trial Court recorded a finding in favour of the plaintiff and in affirmative. Question of possession of the plaintiff. The claim of the plaintiff that the defendants have committed an encroachment by erecting three sheds was issue No.3 and finding in favour of the plaintiff. The plea raised by the defendants regarding non joinder of necessary parties in the written statement was issue No.4 and finding in negative and against the defendants. Limitation was issue No. 4-A and deliver vacant is in favour of the plaintiff that the suit is not within limitation. The trial court decreed the suit with directions to defendants to remove the sheds and liver vacant possession of 6000 sq. Limitation was issue No. 4-A and deliver vacant is in favour of the plaintiff that the suit is not within limitation. The trial court decreed the suit with directions to defendants to remove the sheds and liver vacant possession of 6000 sq. fts. of suit land. A decree for perpetual unction is also passed against the defendants. 6. The defendants were heard in Regular Civil Appeal (RCA) No. 36 of 3 by the first Appellate Court along with the plaintiff. The first Appellate court dismissed the appeal, upholding the judgment and decree passed by the al Court 7. Shri Choudhary, learned Advocate for the defendants urged that the essential question of law, referred to in ground No. (XIII) is involved in the sent appeal, which reads as under :_ "Both the lower Courts should have taken into consideration that no one would sell the property admeasuring 6000 square feet having a house therein without taking any amount for the same and this fact itself is sufficient to non-suit the plaintiff." He also submits that the agreement, without consideration is hit by the provisions laid down under section 25 of the Indian Contract Act, 1872. according to him in the agreement of sale dated 15-10-1984, the suit property i.e. ea to the tune of 6000 sq.ft. was clearly excluded. In other words, there was no agreement for sale of said 6000 sq.ft. area and therefore, sale deed including this ea is without consideration. The amount of Rs. 2,00,000/- shown to have been consideration in the document of sale is for remaining area of S. No. 55/2-B i.e. original Survey Number, which is subject matter of the sale deed dated 21-71986. During the course of his submission, learned counsel for the appellants referred to agreement of sale which is marked as Article "D". Since record and proceedings were called for, I am having benefit of looking to the said document. 8. The trial Court has referred to this agreement Article "D" (referred as Article "A"). It has been referred by the trial Court in its judgment in paragraph No. 30. The trial Court has observed, " said document is photostate copy of the original agreement, which, according to the plaintiff is not traceable. 8. The trial Court has referred to this agreement Article "D" (referred as Article "A"). It has been referred by the trial Court in its judgment in paragraph No. 30. The trial Court has observed, " said document is photostate copy of the original agreement, which, according to the plaintiff is not traceable. Therefore, according to Shri Borse, we can read Article "A" as secondary evidence." The trial Court, in paragraph No. 31 of the said judgment, has further observed, " It has come in the evidence of plaintiff that the said agreement is not traceable. The combine effect of the contention of plaintiff in reply Exhibit 96 as well as in evidence, would show that the original sale agreement is missing. I, therefore, find force in the submission of Mr. B. B. Borse, learned Advocate that since the plaintiff has admitted that there was sale agreement between him and Bhatu Takadu, the photostat copy article-A can be treated as secondary evidence. I, therefore, find no difficulty in reading the same in evidence ." The trial Court, however, in paragraph No. 32 referred to the sale deed Exhibit 74 and turned down the submissions on behalf of the defendants regarding agreement of sale Article "D". The first Appellate Court has referred to this document as Article "A" (when it should have been Article to be photostat copy. In paragraph No.7 of the judgment, the first Ap Court has referred to the notice and reply between the parties and ultimate that the photostat copy produced by the defendants - Article "A" (Article" not admissible in evidence. 9. The admissibility of document Article "D", therefore, is the imp question in this appeal. Learned counsel for the appellants was confronted specific query regarding reference of this execution of agreement of sale 15-10-1984 in the written statement. The learned counsel for the app submits that such specific pleading is not available in the written state have perused the written statement and I also do not find any such pleading by the defendants in their written statement. I have perused the notice give the defendants to the plaintiff under Order XI, Rule 16 of the Code of Procedure. Said notice is filed on record along with list Exhibit 92. Notice page 187 of the Rand P of the trial Court. I have perused the notice give the defendants to the plaintiff under Order XI, Rule 16 of the Code of Procedure. Said notice is filed on record along with list Exhibit 92. Notice page 187 of the Rand P of the trial Court. From this notice, it appears t plaintiff was called upon to produce the agreement of sale dated 15-1 executed by deceased Bhatu. In this notice it was alleged by the defendants the said document is in possession of the plaintiff. This notice was served the plaintiff on 17-9-2002. I have also perused Exhibit 96, reply filed by the plaintiff to notice referred to earlier regarding production of document i.e. agreement of sale dated I 1984. The plaintiff has specifically denied the possession of the said agreement of sale dated 15-10-1984. The plaintiff has, therefore, shown his inability produce said document in the Court. It is further pleaded by the plaintiff reply Exhibit 96 that the sale deed dated 21-7-1986 was in favour of the p and other co-sharers. Agreement of sale dated 15-10-1984 is a document p time to that of the sale deed and therefore, there is no reason for posses said agreement of sale dated 15-10-1984 with the plaintiff. It was untilled requested by this reply Exhibit 96 that since the document/agreement 0 dated 15-10-1984 is not in possession of the plaintiff, notice given by defendants was request to be dismissed/rejected. Thereafter, I have also found application Exhibit 97 filed on behalf defendants on 1-10-2002, requesting the Court to exhibit and read the zero of agreement of sale in the evidence, which is filed by the defendants in the suit. The plaintiff has filed say/reply at Exhibit 99/D. It is pleaded by the plain his reply that the evidence of plaintiff is over and purshish of closure of evidence, is also filed on behalf of the plaintiff. After closure of the evidence on be the plaintiff, the defendants have filed an application seeking permission to secondary evidence. Defendants were not party to the agreement of sale deed and the defendants had not filed said zerox copy of agreement of the time of filing of the written statement or leading evidence, on behalf plaintiff. This reply was filed on 21-10-2002 and ultimately, it was request the application filed by the defendants seeking permission to lead evidence rejected . Defendants were not party to the agreement of sale deed and the defendants had not filed said zerox copy of agreement of the time of filing of the written statement or leading evidence, on behalf plaintiff. This reply was filed on 21-10-2002 and ultimately, it was request the application filed by the defendants seeking permission to lead evidence rejected . The trial Court, after considering the application and reply filed defendants passed an order that the plaintiff is at liberty to take recourse Secondary evidence. The application is filed accordingly. This order seems to have been passed by the learned trial judge on 21-10- 2002. After this, I have also perused the application Exhibit 89 Filed on behalf of the defendants on 17-9-2002, and list 90 along with which sale zerox 90 along with which sale zerox/photoshop copy of agreement of sale (Aricles “A”=”D”) is produced in the suit. From the persual of this document, it appears that it is a photoshat copy. Document seems to have been scribed on the stamp paper of Rs 5/- purchase of the said stamp papers seems to be Shri Bhatu Takadu Choudhary . From this document , it does not appear that it was registered with the Sub Register. 10. As referred in aforesaid paragraphs of this judgment ,document Articles “D” is on record. The learned trial Court had given liberty to the defendants to document in accordance with the provisions of the Indian Evidence "Evidence Act"). I have put a specific query to the learned counsel for ts as to whether this document is referred to in the evidence of is unable to point out from her evidence that she had referred to this of sale. I myself has also examined the evidence of plaintiff, which is in verrcular. However, I could not get reference of this agreement of sale in her , The parties on issue, have to produce primary evidence in the Court. evidence means a document itself and has to be produced in the inspection of the Court. Said provision is laid down under section 62 of nee Act. Leading secondary evidence is made permissible under certain circumstances. It is provided under section 63 of the Evidence Act and it reads as "63. evidence means a document itself and has to be produced in the inspection of the Court. Said provision is laid down under section 62 of nee Act. Leading secondary evidence is made permissible under certain circumstances. It is provided under section 63 of the Evidence Act and it reads as "63. Secondary evidence.- Secondary evidence means and includes- (1) certified copies given under the provisions hereinafter contained; (2) copies made from the original by mechanical processes which is themselves insure the accuracy of the copy, and copies compared with such copies; copies made from or compared with the original; counterparts of documents as against the parties who did not execute them; oral accounts of the contents of a document given by some person who has himself seen." Now, turning to the facts of the present case and on examination of document of sale Article D", I find that the said document is not compared with original by any authority and no such endorsement is appearing on such document. It is also not clear that under which mechanical process, this document procured by the defendants and there is no proof regarding accuracy of the stat copy in relation to the original copy of the document. It is also not established by the defendants that this document was in possession of the tiff and production thereof is denied by the plaintiff. In absence of ration and endorsement regarding verification of the document. It cannot be that the defendants have legally established/proved document Article "D". The cases in which secondary evidence relating to the documents may be given have been listed under section 65 of the Evidence Act. Such evidence cannot tendered of the existence, condition or contents of a document. If it is established by a party to the suit or proceeding that when the original is shown or appears to be in possession or power of the person against whom the document sought to be proved or of any person out of reach of or not subject to proc the Court or of any person legally bound to produce it, and when after the n as mentioned in section 66, such a person does not produce the said document Section 65(b), (c), (d), (e), (f) and (g) also details the contingencies, which secondary evidence can be lead. In the present case I am wary of the fact the notice was given by defendants to the plaintiff. It is clear from the notice E 92 given by the defendants to the plaintiff that the plaintiff has denied posse of the said document i.e. agreement of sale dated 15-10-1984. The defendants have not led a foundation in their pleadings i.e. the written statement that the agreement was executed by deceased Bhatu in favour of the plaintiff on 1 1984 and terms and conditions of such agreement agreed between the defendants as well as the plaintiff were embodies in the "Agreement" and said "Agree is in possession or power of the plaintiff. In absence of any foundation und pleadings, in my view, subsequent notice Exhibit 92 given by the defendant looses its importance. However, said notice was spontaneously replied plaintiff, denying the possession of such an agreement of sale. In this situation, it cannot be said in the present case that the said agreement of sale in possession of power of the plaintiff. In the present case, said document up against the plaintiff. The plaintiff is not accepting existence of such an agreement of sale. Clause (c) of section 65 of the Evidence Act refers to the destruction loss of such original document. This clause also provides that if see evidence can be lead if party offering such evidence of its contents produce the document within reasonable time. However, such inability m be arising from such partys own default or neglect. In the present case, t no evidence on oath led on behalf of the defendants regarding such destruction loss of agreement of sale dated 15-10-1984 and therefore, this photostat . Article "D" cannot be read and/or is not admissible in evidence. Looking entire scheme of section 63 to 66 of the Evidence Act, I am of the opinion the document marked by Article "D" cannot be treated to be secondary evidence and justifiably has not been accepted by the first Appellate Court. . 11. It is apropos to refer to the judgment of the Division Bench Court, in support of the view I have taken, in the case of Laxman Gan Anusayabai, 1977 Mh.L.J. 68 = AIR 1976 Born. 264. . 11. It is apropos to refer to the judgment of the Division Bench Court, in support of the view I have taken, in the case of Laxman Gan Anusayabai, 1977 Mh.L.J. 68 = AIR 1976 Born. 264. The Division Benech aid case was considering the proof of photo copy, negative as well as e print and has considered the provisions as laid down under sections 62 an the Evidence Act. It is held that it is only when the person who photograph and develops it into a negative himself comes into the deposes to both those facts, that a negative becomes admissible in evidence far as the enlarged print is concerned, the position is still worse, for no enlargement can be admitted in evidence without its negative being production proved in the matter. In the present case, there is no evidence led on behalf of the defendants to who has obtained said photostat copy, marked Article "D" and as to was compared with the original thereof. 12 So far secondary evidence is concerned, as noted above, absolutely no is laid down on behalf of the defendants, despite the fact that the al Judge had passed an order on 21-11-2002, granting such permission to establish the document in accordance with the rules of evidence. In my therefore, document Article "D" has been wrongly considered to be e by the trial Court, though the trial Court has ultimately passed a favour of the plaintiff accepting the sale deed Exhibit 65. I have also perused the finding of the first Appellate Court in paragraph the judgment. The first Appellate Court has justifiably refused the e and admissibility of the document Article "D" and proceeded with, the judgment and decree passed by the trial Court. 13. In absence of proof of document Article "D", the submission of learned for the appellant that there was no agreement for sale of the suit property to the tune of 6000 sq.ft. and subsequently, it has been shown in the t Exhibit 74 without consideration, looses its significance in its entirety. 13. In absence of proof of document Article "D", the submission of learned for the appellant that there was no agreement for sale of the suit property to the tune of 6000 sq.ft. and subsequently, it has been shown in the t Exhibit 74 without consideration, looses its significance in its entirety. of sale is not on record and not established in accordance with the evidence and therefore, we have to consider only document Exhibit 74 , This includes and refers the suit propeny i.e. land to the tune of 6000 t of S.No. 52/2-B and said document passes title and possession of suit property in favour of the plaintiff. Both the Courts below have justifiably a finding in favour of the plaintiff and passed a decree in favour of the planintiff. 14. Ground No. (XIII) therefore, cannot be accepted to be a ground . g substantial question of law. No other substantial question of law is behalf of the appellants. On examinations of judgment of the first ate Court I also do not find any substantial question of law involved in this appeal. 15. In the result, second appeal stands dismissed in limine. No order as to Appeal dismissed.