ORDER Bilal Nazki, J.

1. The appellant was defendant in a suit filed by the respondent being OS No.306 of 1975 which was decided by IV Additional Judge, City Civil Court, Hyderabad. The suit was for reconveyance of house No.22-8-389-1 and 2 situated at Purani Haveli, Hyderabad by executing a sale deed in favour of the plaintiff. The plaintiffs case was that she was owner of the house No.22-8-389-1 and 2 at Purani Haveli. The defendant's husband had been dealing in money-lending and he used to advance money with exorbitant rate of interest. To avoid legal complications he adopted the method of obtaining nominal, sham and formal sale deeds in respect of the properties in different names and through different persons to serve as security for the loan advanced. He also got executed rental deeds to realise the interest on the amount advanced. At no time parties intended to sell or transfer ownership of the properties under the documents executed. On or about 22-8-1969 Hasan Bin Mubarak, husband of the defendant advanced a loan of Rs.2,000/- and Rs.3,000/- and obtained sale deeds executed by the plaintiffs husband in favour of the brother of Hassan Bin Mubarak for the plot of land at Somjiguda with the specific understanding of reconveyance of said plot on repayment of loan of Rs.5,000/-. Similarly, on the same day i.e., 29-8-1969 he advanced a further sum of Rs.2,000/- on a pronote and also a sum of Rs.3,000/- and got sale deed executed in favour of Bashir Bin Mubarak in respect of plot of land at Kaladera with specific understanding of reconveyance on repayment of the said loan. The aggregate loan advanced was Rs. 10,000/- through different persons and sale deeds were executed as security for the loans. On 20th August, 1969 a sum of Rs.8,000/- was advanced by Hassan Bin Mubarak, husband of the defendant and title deeds of house No.22-8-389-1 and 2 of Purani Haveli were taken. On 20-9-1969 a further sum of Rs.12,000/- was advanced and a sale deed of the house was obtained. Accordingly an agreement of reconveyance of the said house was executed on the same day i.e., 22-9-1969. Possession of the house was not conveyed. There was no mutation effected in the revenue records. However, a rental deed was executed for Rs.375/- per month representing interest on the amount so advanced. On 24-9-1969 a further sum of Rs.20,000/- wad advanced by Hassan Bin Mubarak through the defendant. A pronote was executed on the same day. Rs. 15,000/-were advanced on 7-11-1969 and another pronote was obtained on the same day. The reconveyance dated 22-9-1969 was substituted by a fresh reconveyance deed on 7-11-1969. Rent of Rs.375/- was enhanced to Rs.1,100/- and a fresh rental agreement was executed on 20th February, 1971. The plaintiff continued to be in possession of the property. He let out of the same to the Government. The defendant's husband Hasan Bin Mubarak was collecting huge amounts every month. He got executed pronotes in favour of Abdul Rahim Bin Mubarak representing the earlier loan of Rs.55,000/- plus interest. It was further stipulated that Rs.10,000- were to be paid as per agreement dated 5-1-1970. He retained the original agreement in his custody. The said document was signed by Abdul Rahim Bin Mubarak and Hasan Bin Mubarak the husband of the defendant. The plots taken as security had been sold for a paltry sum to their relatives and friends by the defendant and her husband. The defendant had filed OS No.301 of 1974 for arrears of rent of Rs.37,8207-. OS.689 of 1972 was filed by Abdul Rahim Bin Mubarak against Mirza Mohiuddin Baig, the husband of the plaintiff on the basis of pronote for Rs.60,000/-. Rs.80,000/- had already been realised by way of cash and rent by the defendant. The plaintiff was ready and willing to pay the amount if any still unpaid.

2. The defendant filed her written statement denying the allegations. Her case was that, she had purchased the suit property for a valuable consideration through a registered sale deed dated 22-9-1969 and ever since the defendant was the owner of the property. Husband of the defendant was not a money-lender. The husband of the defendant had nothing to do with the transaction of sale. The transaction of sale was real one and the sale was in favour of the defendant by the plaintiff for a consideration of Rs.20,000/-. The plaintiff had received Rs.8,000/- on 20-9-1969 and the balance consideration of Rs.12,000/- was received at the time of the execution of the registered sale deed on 22-9-1969 before the Registrar. Plaintiff delivered all the documents pertaining to the suit property along with the non-encumbrance certificate on the date of sale. After the sale the plaintiff remained in possession of the suit house as a tenant and executed a rental deed in favour of the defendant. The agreement of reconveyance relied upon by the plaintiff was false and fabricated document. There was no need of reconveyance of the suit house and the plaintiff was not entitled to file the suit. It is further stated in the written statement that the plaintiff cannot claim the relief of specific performance of reconveyance deed until she offered to pay the alleged amount of Rs.12,000/- in the Court. Suit was not properly valued and the Court fee was not paid correctly. The plaintiff had not complied with any of the terms of reconveyance deed dated 7-11-1969. She had also failed to pay Rs.55,000/- as alleged on or before 22-9-1972. The plaintiff even if the agreement was proved ought to have claimed the reconveyance within three years from the period of the claim. The plaintiffs suit was barred by law.

3. On the pleadings of the parties, following issues were framed by the trial Court:

1. Whether the suit agreement of reconveyance dated 7-11-1969 is true?

2. Whether the plaintiff is entitled for decree for reconveyance?

3. Whether the suit is in time?

4. To what relief?

Issue No. 1 was decided against the plaintiff as the trial Court found that the plaintiff failed to prove the agreement dated 7-11-1969. Issue Nos.2 and 3 were also decided against the plaintiff and the suit was eventually dismissed. An appeal was filed. The learned single Judge framed four points for consideration, they are :

1. Whether the sale deed is a mortgage or sale?

2. Whether the deed of reconveyance is true and if true, is it enforceable?

3. Whether the suit is in time?

4. Whether the appellant is entitled for the relief of specific performance?

He decided the point No. 1 in favour of the plaintiff by holding that Ex.B3 in reality was a mortgage and not sale deed. On point No.2 the Court held that the agreement of reconveyance was true and enforceable. On point No.3 also the Court agreed with the plaintiff and therefore while deciding point No.4 the learned single Judge set aside the judgment of the lower Court and the appellant was directed to deposit Rs.55,000/- and on such deposit the respondent was directed to execute the sale deed reconveying the property in favour of the plaintiff. This judgment is challenged in this appeal.

4. The points raised before the learned single Judge were also raised before this Court and we also propose to decide the questions which were raised before the learned single Judge. But, in our view the fate of the suit rests on the point Nos.2 and 3 as framed by the learned single Judge. Therefore, we deal with point Nos.2 and 3 are framed by the learned single Judge first. It is contended at the Bar that the reconveyance was not true and not enforceable. Alternatively it is also contended that even if it was true it was time barred. If these two questions are answered in the affirmative the plaintiff will succeed and if these questions are answered in negative then the plaintiff is bound to fail. In the light of this discussion we will now deal with the arguments advanced.

5. Ex.A30 is the certified copy of the alleged reconveyance agreement. Ex.A32 is the photocopy of the reconveyance agreement. The original agreement has not been filed before the Court. Negatives of Ex.A30 have also been filed and marked. In the pleadings it was stated that the brother-in-law of the respondent got the original agreement of reconveyance from their custody. The original had not been filed in OS No.689 of 1972. In fact Ex.A30 was the copy of a copy. The trial Court admitted and treated Ex.A30 as secondary evidence. The learned single Judge found that there was voluminous evidence to support the same. PW1 had stated that, at the time of its execution PW2 and one Shafiuddin were present and signed it as witnesses. The learned single Judge found that the evidence of the plaintiff and PW2 and the attest or of the original i.e., PW3 who had identified his signature in the photocopy was sufficient to prove the document. The learned Counsel for the appellant however submits that photocopy of a copy cannot be admitted even as secondary evidence. He supports his contention by referring to Section 63 of the Evidence Act. Section 63 of the Evidence Act lays down :

"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 in themselves ensure the accuracy of the copy, and copies compared with such copies;

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of a document given by some persons who has himself seen it.

Illustrations

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original.

The learned Counsel for the appellant submits that under illustration (c) a copy transcribed from a copy but compared with the original is secondary evidence, but the copy not so compared is not secondary evidence of the original although the copy from which it was transcribed was compared with the original. Now, if one goes by this illustration in the light of the evidence that is on record, one finds that there is no evidence whatsoever showing thereby that the copy taken from the copy was compared with the original. What the plaintiff has tried to do is that, she has tried to prove comparison of the copy with the copy by exhibiting Ex.A32 which is a photo copy along with the negatives. The requirement of illustration (c) was that the copy taken from the copy should have been compared with the original. That could have not been done in view of the pleadings of the plaintiff herself as the original was not with her. The learned Counsel relies on a judgment of Full Bench of this Court in Land Acquisition Officer v. N. Venkata Rao, 1990 (3) ALT 305 (FB). The Full Bench of this High Court summarised the position on the question of admissibilily of copy of a copy as secondary evidence and in para 30 stated :

30. Summarising the position, we hold firstly that if 'secondary evidence' is allowed to be marked for one party without objection at the trial, no objection can be permitted to be raised by the opposite party at any later stage in the same Court or in appeal that conditions from adducing secondary evidence have not been made out initially. Secondly, we hold that though ordinarily copies of copies are not to be treated as 'secondary evidence' unless such copies are again compared with the original, the said principle does not apply to certified copies granted by the Sub-Registrar under the Registration Act. These certified copies are, under law, to be treated as secondary evidence and once they have acquired such a status, the marking of such documents at the trial without objection result in such documents and their contents being evidence in the case. No objection can be raised in the same suit or proceeding or in appeal later by the opposite party that before marking the certified copies, the necessary conditions for adducing secondary evidence have not initially been established. We hold accordingly on point No.2.

According to this judgment, though copies of copies are not to be treated as secondary evidence unless such copies are again compared with the original, the requirement of comparison with the original may not be there in case where the copy was obtained from the Sub-Registrar under the Registration Act and such documents were marked without the protest of the other side. If no objection had been raised at the time of marking, the Court held that, no objection could be entertained in a subsequent stage either in trial or in appeal Ex.A30, A31 and A32 were exhibited by PW2. The defendant objected to marking of documents Ex.A30, A31, A32, A32(a), A32(b) and A32(c). The Court stated, "Learned Counsel for defendant objected to marking of this document on the ground that this cannot be filed and marked as secondary evidence without obtaining permission of Court, Document is marked subject to final arguments on this point at the time of arguments.'' The negatives of these documents were marked as Ex.A33, A33(a), A33(b), and A33(c) respectively. The learned Counsel further states that, in any case this evidence could not be relied as it had not been shown that the original-document could not be brought before the Court. The pleading that the original document was in the custody of the brother-in-law of the defendant was not sufficient to discharge the burden proving the document by primary evidence. It is further stated that, even if it is accepted as stated by PW2 that the brother-in-law of the defendant has accepted in the rejoinder filed in OS No.689 of 1972 that the document was with him, that would not discharge the burden of the plaintiff to prove the document against the defendant. The learned Counsel relies on a judgment of Bombay High Court in Laxman v. Anasuyabai, . The learned Counsel for the respondent however submits that it is not a case covered under Section 63 but Section 65 of the Evidence Act would be applicable. On the face of it this argument docs not appeal. Section 63 of the Evidence Act defines the secondary evidence whereas Section 65 lays down as to in what cases secondary evidence relating to the documents could be led. The learned Counsel for the respondents relies on illustration (a) (b) and (c) of Section 65. They are reproduced;

"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 of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it.

(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time."

As is seen above, this illustration merely says that 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 of any person out of reach of, or not subject to the process of the Court or of any person legally bound to produce it and when after the notice mentioned in Section 66 does not produce it. So, in order to get the benefit under Section 65(a) three things have to be shown; (1) that the document is, or appears to be, in the possession or power of the person against whom the document is sought to be proved; (2) it is in possession of any person out of reach, or not subject to the process of the Court, or of any person legally bound to produce it; (3) that even after a notice under Section 66 the person who has its custody does not produce it. Section 66 lays down the mode of getting the document before the Court. Under this section the person who wants the document has to give a notice to the person in whose custody, the document is, and if no such notice is prescribed under law then a notice which the Court may consider reasonable. Therefore, Section 63 of the Evidence Act lays down what can be termed a secondary evidence and Section 65 lays down in which situations secondary evidence can be led. Section 65(a) does not in any way make a copy of a copy admissible in evidence as it is barred under Section 63. The learned Counsel however relies on the judgment of Supreme Court in Bibi Aisha v. Bihar S.S.M. Avaqaf, . In this judgment copy of a document was taken in evidence which bear the following endorsement, "The copy corresponds to the original". The Supreme Court held :

"Under Section 65(a) of the Evidence Act secondary evidence may be given of the existence, or contents of a document 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, and when after the notice mentioned in Section 66, such person does not produce it. Where the case falls under Section 65(a) any secondary evidence of the contents of the document is admissible. In the present case the conditions of Section 65(a) were satisfied. The plain copy of the Wakf was therefore admissible. On behalf of the appellant it was argued that clause (f) of section 65 was applicable and that as the certified copy of the deed dated August 20, 1827 was permitted by the Evidence Act to be given in evidence a certified copy alone was admissible in evidence. There is no substance in this contention. If the case falls under clause (a) any secondary evidence of the document is admissible, though the case may also fall under clause (f). Clause (a) is not controlled by clause (0. In the case of A Collision Between the Ava, ( 1879) ILR 5 Cal 568, a question arose as to whether secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted clause (c) of Section 65 and the failure to produce it after notice attracted clause (a). clause (f) of section 65 was also applicable"

This shows that the observations made were in altogether a different context and non-admissibilty of copy of the copy which is prescribed under Section 63 of the Evidence Act was not a question before the Supreme Court. The copy that was held to be admissible was a copy which had been compared with the original and the question before the. Supreme Court was, whether clause (a) in section 65 is controlled by clause (f) or they are independent of each other. Therefore, this judgment cannot come to the rescue of the respondent.

6. Another judgment relied by the learned Counsel for the respondent is of Punjab and Haryana High Court in Bihrilal v. Ram Piari, 2000(2) CCC 278 (P&H). The learned single Judge of Punjab and Haryana High Court relied on two judgments which have not been produced before this Court being Mukhtir Singh v. Bant Singh, (1991-1) 99 PLR 15, and Smt. Raj Kumari v. Shri Lal Chand, (1994-1) 106 PLR 190, in which, according to the learned single Judge it has been held that a photo copy of the original Will could be permitted to be taken as secondary evidence. We do not want to go into this question because the judgments referred have not been made available to us. Even otherwise it appears that the Court was of the view that photo copy of the original Will can be treated as secondary evidence, but here we arc not dealing with a case where photo copy of a original before us we have a copy of a copy of the original. Therefore, this judgment will also not help the respondent.

7. The other argument made by the learned Counsel for the respondent was that, appreciation of evidence in Letters Patent Appeal was restricted in nature therefore this Court would not be justified in going through the evidence as an appellate Court. He refers to a judgment of Division Bench of this Court in Raja Ratan Gopal Sainchar v. Rajendra Prasad, (DB), but we are guided by the judgment of Supreme Court in Asha Devi v. Dukhi Sao, , which lays down:

"There is no dispute that an appeal lies to a Division Bench of the High Court from the judgment of a single Judge of that Court in appeal from a judgment and decree of a Court subject to the superintendence of the High Court, the only question is whether the power of a Division Bench hearing a Letters Patent Appeal under clause 10 of the Letters Patent of Patna High Court or its analogous provisions in the Letters Patent of other High Courts is limited only to a question of law under Section 100 of the Code of Civil Procedure or has it the same power which the single Judge has as a first Appellate Court in respect of both questions of fact and of law. The limitations on the power of the Court imposed by Sections 100 and 101 of the Code of Civil Procedure cannot be made applicable to an Appellate Court hearing a Letters Patent Appeal from the judgment of a single Judge of that High Court in a first appeal from the judgment and decree of the Court subordinate to the High Court for the simple reason that a single Judge of the High Court is not a Court subordinate to the High Court. This Court in Ladli Prasad v. Karnal Distillery Co., Ltd., , had occasion to observe that a single Judge deciding a first appeal may be a Court immediately below the Court hearing a letters patent appeal but it is not a Court subordinate to the High Court."

Even otherwise, we are not going into the total evidence and are considering a pure legal question as to whether a particular document was admissible in evidence or not? The learned single Judge has relied on lot of evidence to show that Ex.A32 was executed between the parties. We are not going into that question at all because in view of the judgments cited hereinabove we find that the document itself was not admissible in evidence and the decree is based on the said document. The decree is for execution of an agreement which is held by us not admissible in evidence.

8. The question whether the sale deed was in fact a sale deed or a mortgage deed needs no answer in view of the fact that there is no reconveyance deed. Admittedly the so called reconveyance deed was allegedly executed after a long time after the sale deed was executed. The judgments relied upon by the learned Counsel for the respondent and which were relied upon by the learned single Judge arc not at all applicable to the facts of the present case. In those cases reconveyance deeds were not in dispute and as a matter of fact reconveyance deeds were executed on the date of sale deed itself. Therefore, we hold that the sale deed was in fact a sale deed as there was no reconveyance deed. This deed of sale could not be termed as a mortgage deed.

9. For the reasons, we allow the appeal. Set aside the judgment of the learned single Judge. No order as to costs.