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TMI Blog2009 (12) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... r in the land measuring 143 kanals 12 marlas to the extent of 1/3rd share situated at village Uchoke Khurd, Tehsil Baba Bakala, District Amritsar. Avtar Singh died on 10.1.1999. After his death, his 1/3rd share devolved upon the plaintiff as per Will dated 22.4.1998 executed by deceased Avtar Singh. The plaintiff had to file suit for permanent injunction restraining the defendants/respondents from interfering in the land to the extent of 1/3rd share of 143 Kanals 12 Marlas on the pretext of realisation of the amount of loan of ₹ 1,50,000/- which is alleged to have been advanced to her deceased husband Avtar Singh. On notice, defendants filed written statement in which besides taking all the technical legal pleas, on merits it was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pleadings? (ii)Whether merely placing on record photostat copies of documents, liability against a person can be sustained when neither execution of those documents has been proved nor even the original documents are produced in evidence? (iii)Whether the judgment and decree of the first Appellate Court holding that Avtar Singh availed loan from the Bank and the amount is recoverable by sale of suit land but the loan was availed by Mukhtiar Singh and as such, the Bank is entitled, can be sustained as the evidence is completely contrary to the pleadings of the parties. Sh.B.R.Mahajan, learned counsel for the appellant has vehemently argued that pleaded case of the respondent Bank is that deceased Avtar Singh had availed loan fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the learned District Judge suffers from perversity being completely contrary to the pleadings of the parties, is answered in favour of the appellant and it is held that since the defendants had taken the plea in the written statement that they are interfering in the possession of the plaintiff for the purpose of possession and sale of her property for the purpose of recovery of amount advanced by the Bank to Mukhtiar Singh for the which Avtar Singh stood as a guarantor, the Bank cannot seek recovery in the garb of loan having been availed by Avtar Singh (deceased) which has not been proved even from the cross- examination of DW2 Mukhtar Singh, which is extracted as under : Avtar Singh never took any loan from defendant No.1. He once ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same by way of secondary evidence was obtained from the Court. By merely marking Ex. on the document does not become admissible in evidence though brought on record, has to be excluded from consideration. Further more, an objection to the admissibility of the evidence was taken when it was tendered in evidence. In this regard, the Ld.counsel for the plaintiff relied upon 2004(4) RCR (Civil) page 704 case titled as R.V.F. Venkatachala Gounder Versus Arulmigu Viswesaraswami V.P.Temple and others in which their Lordship has held as under : Document marked as exhibit, a document not admissible in evidence though brought on record, has to be excluded from consideration. An objection to the admissibility of evidence should be taken when it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and signatures of Avtar Singh. Similar is the assertion of DW3 with regard to Ex.D6, Ex.D7, Ex.D8, Ex.D9, Ex.D10, Ex.D11, Ex.D12, Ex.D12-A, Ex.D12-B, Ex.D14, Ex.D15, Ex.D16, Ex.D17, Ex.D18, Ex.D19 and Ex.D20. As such no evidentiary value could be attached to these documents as well. It is also submitted that the aforesaid findings have not been even referred to while passing the judgment of reversal by the learned first Appellate Court. The second question of law is thus answered that photostat copy of document is neither a primary nor a secondary evidence. Original document is primary evidence and a copy thereof can be led as secondary evidence in accordance with the provisions of Section 65 of the Indian Evidence Act, 1872. Hence, ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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