JUDGMENT : Sathish Ninan, J. The suit for specific performance of an agreement for sale was dismissed by the trial court. The plaintiff is in appeal. 2. The plaint schedule property having an extent of 4 acres and 44.5 cents belong to defendants 2 to 4. The plaintiff is a trust represented by its chairman. He is hereinafter referred to as “the plaintiff”. According to the plaintiff, he entered into Ext.A1 agreement for sale dated 05.08.2004 with the owners, for purchase of the property for a total sale consideration of ? 53,34,000/-. The agreement was entered into through the first defendant as the power of attorney holder of the owners, as per Ext.A12 power of attorney dated 20.07.2004, since they are abroad at United States of America. Under Ext.A1, the period fixed for performance was three months. An amount of ? 1 lakh was paid on the date of Ext.A1 towards advance sale consideration. Subsequently the period was extended till December and thereafter, under Ext.A2, the period was extended up to 30.01.2008. Alleging failure on the part of the defendants to honour the agreement, the suit was filed. 3. The defendants denied Exts.A1 and A2 agreements, and also Ext.A12 power of attorney. It was alleged that the first defendant had, in the year 2004, availed a loan from the plaintiff. As security he was caused to sign on a blank stamp paper; the same was fabricated into the agreement for sale. 4. At the time of trial, the witnesses to Exts.A1 and A2 agreements were not alive. The document writers of Exts.A1 and A2 were examined as PWs.3 and 7. PW2, the cousin brother of the first defendant, who claimed to have witnessed the execution of Ext.A1 agreement, was also examined. The trial court, relying on the evidence of the witnesses, upheld Exts.A1 and A2 agreements. However it was found that the plaintiff has failed to prove Ext.A12 power of attorney. Accordingly it was held that, defendants 2 to 4 who are the title holders of the property, are not bound by Exts.A1 and A2 agreements. Thus the suit was dismissed. 5. We have heard Smt.Sumathy Dandapani, the learned Senior Counsel for the appellant and Sri.George Poonthottam, the learned Senior Counsel for the defendants. 6. Accordingly it was held that, defendants 2 to 4 who are the title holders of the property, are not bound by Exts.A1 and A2 agreements. Thus the suit was dismissed. 5. We have heard Smt.Sumathy Dandapani, the learned Senior Counsel for the appellant and Sri.George Poonthottam, the learned Senior Counsel for the defendants. 6. The following points arise for determination in the appeal: - (i) Is the finding of the trial court upholding Exts.A1 and A2 agreements sustainable on the evidence on record? (ii) Was the trial court right in having held that the plaintiff failed to prove the genuineness of Ext.A12, the photostat copy of Power of Attorney? (iii) Do the decree and judgment of the trial court warrant any interference? 7. The trial court held that the plaintiff succeeded in proving the due execution of Exts.A1 and A2 agreements. The respondents sought to contend against the finding. According to the learned counsel for the appellant, the said finding, which is in his favour, has become final. In the absence of any appeal by the defendants they are precluded from urging any challenge against the said finding, it is argued. 8. We are unable to agree with the contention. In terms of Order XLI Rule 22 of the Code of Civil Procedure, an appeal or cross objection is necessary only as against a decree. In an appeal against the decree, the respondent is entitled to urge against the findings, if any, entered against him in the impugned judgment, even without filing a cross objection. Of course, the explanation to Order XLI Rule 22 makes it clear that it may be open for the respondent to file a cross objection but, it is not mandatory. 9. Firstly we proceed to consider whether the evidence on record justifies the finding of the trial court regarding the due execution of Exts.A1 and A2. 10. Denying the genuineness of Exts.A1 and A2 the defendants contend that the first defendant had, while availing a loan from the plaintiff in the year 2004, entrusted him a signed blank stamp paper as security. The same has been used to fabricate the documents, is the contention. Therefore, the admission is only with regard to one signature of the first defendant and that too in one stamp paper alone. The same has been used to fabricate the documents, is the contention. Therefore, the admission is only with regard to one signature of the first defendant and that too in one stamp paper alone. The plaintiff could have taken steps for comparison of the signatures of the first defendant at the various pages of Exts.A1 and A2. However, such a course was not resorted to. 11. Both the witnesses to Ext.A1 agreement are no more. The daughter of one of the witnesses was examined as PW8. It is very important to note that she denied the alleged signature of her father, in Ext.A1. 12. PW2 is the cousin brother of the first defendant. He was examined to prove the execution of Ext.A1. The claim is that Ext.A1 was executed in his presence. Pertinently, PW2 has not signed in Ext.A1 as a witness. Ext.A1 is signed by two other persons as witnesses. If that be so, there was no necessity for the presence of PW2 at the time of the alleged execution of Ext.A1. No special reason is suggested as to why he required the presence of PW2 at the time of execution of Ext.A1 without he being a witness to the document. This tells upon the reliability of the evidence of PW2. 13. PW2 admitted that the plaintiff has a financing business. It is the case of the first defendant that he had availed a loan from the plaintiff in the year 2004 for one Baby. PW2 admitted the same. The said Baby was examined as PW5. Though he does not admit the quantum, he admitted such transaction. Therefore, the evidence of PWs.2 and 5 reveal that the plaintiff is running a financing business and that the first defendant had transaction with him. 14. Ext.A1 agreement recites that the advance sale consideration paid on the date of Ext.A1 is ? 1 lakh and that the said payment is through a cheque. Though defendants 2 to 4 are the owners of the property and the first defendant is claimed to be merely the power of attorney holder, the cheque is allegedly drawn in the name of the first defendant. The original cheque is produced by the plaintiff himself before the Court, putting forward a case that, subsequently the cheque was got returned and the amount of ? 1 lakh was paid in cash in two installments. The original cheque is produced by the plaintiff himself before the Court, putting forward a case that, subsequently the cheque was got returned and the amount of ? 1 lakh was paid in cash in two installments. Exts.A4(a) and (b) are vouchers claimed to have been executed by the first defendant at the time of receipt of the said two installments in cash. The aforesaid claim of the plaintiff does not stand to reason. As noticed, there was no reason why the cheque should have been issued in the name of the first defendant when he is not the owner of the property. So also, there is no reason why the cheque was got returned and the amount was paid subsequently in cash. Such alleged return of cheque and payment of cash is not endorsed on Ext.A1. Though the said amount of ?1 lakh is claimed to have been paid in two installments, it is not stated as to when the cheque was got returned. If at the time of payment of the first installment the cheque was not got returned, then the first defendant would be having with him in addition to the cash, a cheque for ? 1 lakh. Anyway, the cheque would not be returned on receipt of part payment without any security for payment of the balance. Such a transaction is highly improbable. 15. The stamp paper upon which Ext.A1 agreement is written is seen purchased in the name of the first defendant. It is to be borne in mind that he is not the owner of the property. When the purported transaction is between the plaintiff and defendants 2 to 4, under normal circumstances, the stamp paper would have been purchased in the name of either of them. This, along with the story of return of cheque and payment in cash etc. has significance in the context of the contention of the first defendant and the admission of PW2 that the first defendant had borrowed amount from the plaintiff who runs a finance business. 16. Going by the recitals in Ext.A1 agreement, the total sale consideration is more than ? 53 lakhs. However, the advance amount paid is stated to be only ? 1 lakh. The period fixed was three months. 16. Going by the recitals in Ext.A1 agreement, the total sale consideration is more than ? 53 lakhs. However, the advance amount paid is stated to be only ? 1 lakh. The period fixed was three months. It is claimed that the period was extended up to December, 2007, and under Ext.A2, the period was extended up to 30.01.2008 i.e for a further period of three years. The explanation offered for such long extension is that the defendants 2 to 4 themselves wanted to come down to the native place and execute the conveyance. It is very difficult to accept the explanation. According to the plaintiff, the purpose for purchase of the property is to establish a medical college. That being the purpose, he would have acquired the property at the earliest and not delayed it and at any rate for a period of three years. That apart, it is very difficult to believe that an ordinary prudent vendor would enter into an agreement for sale fixing the period as four years, unless there are such justifiable and compelling reasons. All the above tells upon the genuineness of the agreement. 17. Further, in a suit for specific performance the plaintiff has to aver and prove his readiness and willingness to perform the agreement. There is not even a scrap of paper to show that the plaintiff had at any point of time prior to the filing of the suit sought performance of the agreement. 18. Yet another important aspect is that, the property in question was alienated by defendants 2 to 4 in favour of defendants 6 to 8 through the 5 th defendant as the power of attorney holder. 5 th defendant is the son of the first defendant. The power of attorney (Ext.B2) is dated 15.02.2008. The sale deeds (Exts.B5 to B7) were executed on 03.03.2008. As per the said sale deeds the total sale consideration is only ? 40,00,000/- (approx.), whereas under Ext.A1 the total consideration fixed is more than ?53 lakhs. Therefore, if there was such an agreement for sale with the plaintiff for a higher amount, defendants 2 to 4 would not have effected sale of the property under Exts.B5 to B7 for such a lesser amount. All the above circumstances points against the genuineness of Exts.A1 and A2 agreements. 19. Therefore, if there was such an agreement for sale with the plaintiff for a higher amount, defendants 2 to 4 would not have effected sale of the property under Exts.B5 to B7 for such a lesser amount. All the above circumstances points against the genuineness of Exts.A1 and A2 agreements. 19. Overlooking all the above circumstances, the trial court has upheld Exts.A1 and A2 solely relying on the oral evidence of the document writers. The precision with which the document writers PWs.3 and 7 have deposed about the purchase of the stamp papers and the transaction in its entirety, would only cast doubt on the credibility and the acceptance of their evidence. They would definitely have been involved in a lot of transaction over the years, in spite of which, the specifics are spoken to by them. 20. Incidentally we may also notice that, a bare glance at the signature in the first page of Ext.A1 agreement with the other pages and Ext.A2, casts a suspicion on its genuineness. However we make it clear that we have not arrived at a conclusion on such perusal, but on the basis of the entire circumstances as noticed supra. 21. We set aside the finding of the trial court with regard to proof of Exts.A1 and A2 and hold that the plaintiff has failed to prove the due execution of the said documents. 22. Now coming to Ext.A12, it is the photostat copy of a power of attorney allegedly executed by defendants 2 to 4 in favour of the first defendant, the trial court has held against its genuineness. The defendants have denied the execution of such a power of attorney and also the genuineness of Ext.A12. Ext.A12 is a mere photostat copy. Plaintiff had filed IA 595/2012 seeking a direction to the first defendant to produce the original of Ext.A12 power of attorney, alleging that the original is with the first defendant. The first defendant filed an affidavit denying the very existence of such document. The Court proceeded to order the application as, closed. During trial, the Court proceeded to admit the photostat copy, in spite of the objection by the defendants. 23. Section 65 of the Evidence Act (corresponding to S.60 of the Bharatiya Sakshya Adhiniyam) enables admission of secondary evidence under certain circumstances. The Court proceeded to order the application as, closed. During trial, the Court proceeded to admit the photostat copy, in spite of the objection by the defendants. 23. Section 65 of the Evidence Act (corresponding to S.60 of the Bharatiya Sakshya Adhiniyam) enables admission of secondary evidence under certain circumstances. One contingency is, when the original document is in the possession of the person against whom it is sought to be proved, and he does not produce it even after a notice to him as required under Section 66, to produce the original. According to the plaintiff, the original power of attorney is with the first defendant and in spite of he being called upon to produce the same in compliance with Section 66, he did not produce it. Therefore secondary evidence namely, the photostat copy of the document, is liable to be admitted in evidence, is the contention. The relevant part of the Section, is extracted hereunder :- “S.65: Cases in which secondary evidence relating to documents may be given.- Secondary evidence may be given of the existence, condition or contents of a document in the following cases: (a) When the original is shown or appears to be in the possession or power- of the person against whom the document is sought to be proved, or ……………. and when, after the notice mentioned in section 66, such person does not produce it; (b) ………. (c) ……… (d) ……. (e) ……. (f) ……. (g)) ……... In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.” As is evident from the section, for admission of secondary evidence it must be shown that, the original is or appears to be in the possession or power of the other person who is called upon to produce. Therefore, the Court necessarily has to find the existence of such document. In a case where the very existence of the document is denied by the other side, a mere notice to produce in terms of Section 66 will not make the photostat copy (secondary evidence) admissible. In Smt.J.Yahoda v. Smt.K.Shobha Rani [ 2007 (5) SCC 730 ] , the Apex Court held, “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.” In Rakesh Mohindra v. Anita Beri & ors. In Smt.J.Yahoda v. Smt.K.Shobha Rani [ 2007 (5) SCC 730 ] , the Apex Court held, “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.” In Rakesh Mohindra v. Anita Beri & ors. [ 2016 (16) SCC 483 ], the Apex Court held, “The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted. ….. …. ….. …. ….. ….. …. ….... …...... It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.” Therefore, for admission of secondary evidence, the party has to establish the foundational facts viz., that there existed the original document and that the original is lost or destroyed or is being deliberately withheld by the party against whom it is sought to be used. A mere demand under Section 66 to produce the original of a document and the failure of the other side to produce the same would not make the secondary evidence admissible especially when the very existence of such a document is denied. The foundational facts need to be established, upon which alone the secondary evidence becomes admissible. 24. Further, the mere admission of secondary evidence does not constitute proof of the document. In Jagmail Singh & another v. Karamjit Singh & ors. The foundational facts need to be established, upon which alone the secondary evidence becomes admissible. 24. Further, the mere admission of secondary evidence does not constitute proof of the document. In Jagmail Singh & another v. Karamjit Singh & ors. [ (2020) 5 SCC 178 ] , the Apex Court, after finding the prima facie existence of the disputed document therein, which was a Will, and having found that the factual foundation for adducing secondary evidence has been established, held, “The appellants would be entitled to lead secondary evidence in respect of the will in question. It is, however, clarified that such admission of secondary evidence automatically does not attest to its authenticity, truthfulness or genuineness which will have to be established during the course of trial in accordance with law.” In the case at hand, on the discussions hereunder, the secondary evidence namely, the photostat copy is not liable to be admitted in evidence; and even if admitted, its genuineness is not established. 25. It is relevant to note that Ext.A1 agreement does not give any details of the power of attorney including its date. Ext.A1 does not mention that a copy of the power of attorney was handed over. There is no evidence that the copy was compared with the original. Significantly, the first page of Ext.A12(the photostat copy) does not contain even the stamp of the Treasury (Depot). The reverse side of the first page of the power of attorney is also not seen. The power of attorney is claimed to be a notarised one, notarised by a notary public at New York. The defendants have produced a certificate stating that there is no such notary public with the name as seen in Ext.A12. Of course, the plaintiff has challenged the genuineness of the certificate. The plaintiff could have very well produced a certificate to prove that there exists such a notary public and that the power of attorney was notarised by him. However, such a course is not adopted. In Ext.A12, in the seal of the notary public, the place is seen as “ Newyork ” whereas in Ext.B2 power of attorney admittedly executed by defendants 2 to 4 in favour of the 5 th defendant and notarised at America, the place is stated as “ New York ”. However, such a course is not adopted. In Ext.A12, in the seal of the notary public, the place is seen as “ Newyork ” whereas in Ext.B2 power of attorney admittedly executed by defendants 2 to 4 in favour of the 5 th defendant and notarised at America, the place is stated as “ New York ”. So also, in the seal of the notary public as seen in Ext.A12 it reads “Qualified in Nassau Country ” whereas in Ext.B2 it is stated as “Qualified in Nassau County ” . The place “New York” is never written as a single word and so also the place Nassau is referred to as “ County ” and not “ Country ” . The photostat copy is not above suspicion. As was noticed supra, the conveyance of the property under Ext.B2 was for a lesser price. If there existed such an agreement as Ext.A1 and A2 which were entered into on the strength of Ext.A12 power of attorney, the owners would have only stood to gain. Ext.A12 photostat copy was not produced along with the plaint. All the above tells upon the genuineness of Ext.A12. The trial court was right in having held against the same. The conclusion arrived at by the trial court is based on the materials and is a possible one. There is no sufficient material to overturn the said finding. 26. On the discussions as above, we find that the trial court was right in having dismissed the suit. There is no merit in the appeal. We do not find any reason to decline costs to the respondents. The appeal fails and is dismissed with costs.