Judgment Rajiv Sharma, J. This petition is instituted against the order dated 3.6.2014 rendered by the learned Civil Judge (Sr. Divn.) Kasauli, District Solan, H.P., in CMA No. 36/6 of 2014 in Civil Suit No. 170/1 of 2006. 2. Key facts, necessary for the adjudication of the petition are that the petitioner (hereinafter referred to as the plaintiff ) and Smt. Anila Sood have filed a suit under Section 34 and 38 of the Specific Relief Act, 1963, for declaration that the respondentdefendant (hereinafter referred to as the defendant) has no right, title or interest over the suit property in any manner and plaintiffs are in possession of the same. Consequently, defendants be restrained from causing any type of loss, injury and doing any such act which may in any manner, cause prejudice to the user, possession and title of the plaintiff qua the suit property. The subject matter of the suit is part of the land defined as Survey No. 41, Kasauli Cantt. Tehsil Kasauli and structures/buildings more specifically known as “Dharma Prakash, Homestead”. One late Sh. Duni Chand Advocate was owner in possession of land comprised in Survey No. 41, measuring 2.31 acres described as “Kildare Estate” Homestead Dharma Prakash. Late Sh. Duni Chand, during his life time executed a gift deed with regard to the property owned by him which was registered as deed No. 2 with Sub Registrar, Kasauli. He gifted his properties to his son Justice late Sh. Tek Chand. Justice late Sh. Tek Chand became owner-inpossession of the suit property. Justice late Sh. Tek Chand expired on 16.6.1996 leaving behind two daughters Smt. Anila Sood and Smt. Anita Beri and one son Sh. Vikram Dhanda. Justice late Sh. Tek Chand during his life time executed a legal and valid ‘will’ in favour of plaintiff No. 2, Smt. Anita Beri, which was duly registered with Sub Registrar Chandigarh, as deed No. 410 dated 19.6.1984. The mother of defendant was step sister of Justice late Sh. Tek Chand. He was using portion of house known as ‘Homestead’ with the permission of plaintiff No. 2, namely, Smt. Anita Beri. She came to know that defendant was misusing the license and raised some illegal construction in the shape of platform, so as to use the same for the purpose of car parking. Tek Chand. He was using portion of house known as ‘Homestead’ with the permission of plaintiff No. 2, namely, Smt. Anita Beri. She came to know that defendant was misusing the license and raised some illegal construction in the shape of platform, so as to use the same for the purpose of car parking. According to the plaintiff, defendant has no right, title or interest over the suit property and as such could not change the nature of the same. A legal notice was issued on 5.11.2006. Reply was sent by the defendant to the same. The defendant has also started causing obstruction to the path which leads from circular road to ‘Homestead cottage’ and ‘Homestead building’. Plaintiff No. 2 has requested the defendant not to lock the gate. However, the lock on the gate has been put to cause temporary obstruction, hindrance and prejudice to the user of the suit property by plaintiff No. 2. 3. The written statement was filed by the defendant to the plaint. Replication was filed to the written statement. Plaintiff No. 2 has already led evidence. However, when the evidence of defendant was led, he moved an application under Section 65 of the Indian Evidence Act, 1872, read with Section 151 CPC, for leading secondary evidence for grant of permission to prove the letter of disclaimer Ext. DW-2/B, executed by Justice late Sh. Tek Chand on 24.8.1982, by way of secondary evidence. 4. According to the averments contained in the application under Section 65 of the Indian Evidence Act, 1872, the defendant has summoned the record of General Land Register from the Office of D.E.O. Ambala, who is the custodian of the record. At the time of sanction of the mutation with regard to the suit property he had filed the original affidavits of the co-sharers including affidavits and original letter of disclaimer of Justice late Sh. Tek Chand with one photostat set of the same in the office of D.E.O. Ambala. On the basis of the original letter of disclaimer and affidavits, mutation of the suit property was sanctioned in favour of the deponent. The concerned official produced the original record in the Court on 4.7.2013 except the letter of disclaimer executed by Justice late Sh. Tek Chand on 24.8.1982, in favour of Sh. Harish Chandra Dhanda and Smt. Vijaya Kumari, the mother of the applicant. The concerned official produced the original record in the Court on 4.7.2013 except the letter of disclaimer executed by Justice late Sh. Tek Chand on 24.8.1982, in favour of Sh. Harish Chandra Dhanda and Smt. Vijaya Kumari, the mother of the applicant. The original disclaimer letter is supposed to be in the said office but the concerned official made statement on oath in the Court that the original is not in their office and their office has photostat copy of the original, and therefore, he produced the photostat copy of the letter. He has also sought the record from the office of Director, Defence Estate, Chandigarh, where parallel record is also maintained. The concerned official produced the record and stated that the original of letter of disclaimer DW-2/B was not available in their office. Only photocopy was available. He also summoned the record of Chief Executive Officer, Kasauli, where record of properties of Cantonment area is also maintained but the original of the letter of disclaimer of Justice late Sh. Tek Chand was not available in their record. Thus, according to the application, the defendant despite of his efforts, the original of DW-2/B was not traceable and has been misplaced/lost from the Office of D.E.O. Ambala. It is, in these circumstances, the application was filed. 5. Reply to the application was filed. It was denied that the letter of disclaimer ever existed or Photostat of the same was ever made. Justice late Sh. Tek Chand never executed disclaimer letter. The photostat copy was forged one. 6. Issues were framed by the learned Civil Judge (Sr. Divn.) Kasauli, District Solan on 14.6.2011. Sh. Rakesh Mahindra AW-1, defendant-applicant has led his evidence by filing affidavit AW-1/A. In his cross-examination, he has admitted that he has not mentioned in any document except affidavit Ext. AW-1/A that the letter of disclaimer was executed by Justice late Sh. Tek Chand in his presence. He has also admitted that it has not been mentioned in any of the documents earlier that this document was executed in front of somebody else or it was given to his mother by him. 7. The plaintiff has also led his evidence by filing affidavit Ext. PW-2/A. She has denied that disclaimer document Ext. DW- 2/B was ever executed by Justice late Sh. Tek Chand. The learned Civil Judge (Sr. Divn.), Kasauli, allowed the application on 3.6.2014, hence this petition. 8. 7. The plaintiff has also led his evidence by filing affidavit Ext. PW-2/A. She has denied that disclaimer document Ext. DW- 2/B was ever executed by Justice late Sh. Tek Chand. The learned Civil Judge (Sr. Divn.), Kasauli, allowed the application on 3.6.2014, hence this petition. 8. I have heard learned Advocates and gone through the pleadings carefully. 9. There is no averment about Ext. DW-2/B in the Written Statement. The Written Statement was filed on 19.2.2007. DW-2/B infact is only a photocopy. The plaintiffs are claiming the property on the basis of a registered gift deed executed in her favour in the year 1984. It was necessary for the defendant to prove that in what manner the document dated 24.8.1982 was executed. The defendant while appearing as AW-1 has admitted in his cross-examination that except in his affidavit Ext. AW-1/A, he has not mentioned in any document that the letter of disclaimer was executed by Justice late Sh. Tek Chand in his presence. The statement of DW-2 does not prove that Ext. DW-2/A, ever existed. DW-2 Sh. Gurcharan Singh, has categorically admitted in his cross-examination that he has not brought the original of Ext. DW- 2/B. He has also admitted that on Ext. DW-2/B, the signatures of P.C. Danda were not legible. Volunteered that, those were not visible. The learned trial Court has completely misread the oral as well as the documentary evidence, while allowing the application under Section 65 of the Indian Evidence Act, 1872, more particularly, the statements of DW-2 Gurcharan Singh and DW-3 Deepak Narang. The applicant has miserably failed to comply with the provisions of Section 65 of the Indian Evidence Act, 1872. The learned trial Court has erred by coming to the conclusion that the applicant has taken sufficient steps to produce document Ext. DW- 2/B. 10. Their lordships’ of the Hon’ble Supreme Court in the case of J. Yashoda vrs. Smt. K. Shobha Rani, reported in AIR 2007 SC 1721 , have held that in order to enable a party to produce secondary evidence, it is necessary for the party to prove existence and execution of the original document. The conditions laid down in this Section must be fulfilled before the secondary evidence is admitted. Smt. K. Shobha Rani, reported in AIR 2007 SC 1721 , have held that in order to enable a party to produce secondary evidence, it is necessary for the party to prove existence and execution of the original document. The conditions laid down in this Section must be fulfilled before the secondary evidence is admitted. The secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. Their lordships’ have held as under: “7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. 8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence. 9. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule 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 it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Another [ 1975(4) SCC 664 ], it was inter alia held as follows: "After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of respondent no.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court." 11. In another case, in H. Siddiqui (dead) by LRs. vrs. A. Ramalingam, reported in AIR 2011 SC 1492 , their lordships’ of the Hon’ble Supreme Court, have held that where original documents are not produced at any time, nor any factual foundation has been led for giving secondary evidence, it is not permissible for the Court to allow a party to adduce secondary evidence. The secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in Section 65. Their lordships’ have held as under: “10. Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. ……….. ………………. ………………….. ……….. ………………. ………………….. 12. In our humble opinion, the Trial Court could not proceed in such an unwarranted manner for the reason that the respondent had merely admitted his signature on the photocopy of the power of attorney and did not admit the contents thereof. More so, the court should have borne in mind that admissibility of a document or contents thereof may not necessary lead to drawing any inference unless the contents thereof have some probative value.” 12. In order to lead secondary evidence, it is necessary for the party to prove existence and execution of the original document. The defendant has failed to prove that he has ever handed over the original of the disclaimer letter dated 24.8.1982 to the Authorities. The entire exercise has been undertaken by the defendant to overcome the shortcomings in his evidence. 13. Accordingly, the petition is allowed. The order dated 3.6.2014 passed by the learned Civil Judge (Sr. Divn.) Kasauli, District Solan, H.P., in CMA No. 36/6 of 2014 in Civil Suit No. 170/1 of 2006, is set aside. In order to obviate delay, the parties are directed to appear before the learned trial Court on 22.9.2014 through their Advocates.