Rakesh Kumar Jain, J.:— The plaintiff is in second appeal against the judgment and decree dated 10.9.2007 passed by the District Judge, Amritsar who had reversed the judgment and decree of the trial Court dated 5.8.2006 by which suit for permanent injunction filed by the plaintiff was decreed.

2. Brief facts of the case are that the plaintiff is the widow of Avtar Singh who was a co-sharer in the land measuring 143 kanals 12 marlas to the extent of ⅓rd share situated at village Uchoke Khurd, Tehsil Baba Bakala, District Amritsar. Avtar Singh died on 10.1.1999 After his death, his ⅓rd 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 ⅓rd share of 143 Kanals 12 Marlas on the pretext of realisation of the amount of loan of Rs. 1,50,000/- which is alleged to have been advanced to her deceased husband Avtar Singh.

3. On notice, defendants filed written statement in which besides taking all the technical legal pleas, on merits it was denied that Avtar Singh never took loan from the defendant Bank and further denied that Avtar Singh had never mortgaged his land in favour of the defendant Bank. It was urged that the plaintiff being the legal representative of Avtar Singh is liable to pay the amount of/loan with interest.

4. Replication was not filed. On the pleadings of the parties, the following issues were framed:

(i) Whether the plaintiff is entitled to injunction as prayed for? OPP.

(ii) Whether the Civil Court has no jurisdiction to decide the suit? OPD.

(iii) Whether the suit is not maintainable in its present form? OPD.

(iv) Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD.

(v) Relief.

To prove her case, plaintiff Darshan Kaur examined herself as PW1 and Manpreet Singh as PW2. On the other hand, defendants examined Shankar Singh as DW1, Mukhtiar Singh as DW2, Lakhwinder Singh as DW3 and closed their evidence.

5. After appreciating the evidence of both the parties, the trial Court decreed the suit vide its judgment and decree dated 5.8.2006 Appeal of the defendants, however, was allowed vide judgment and decree dated 10.9.2007 by the learned District Judge, Amritsar. Aggrieved against the judgment and decree of the learned Appellate Court, the appellant has filed the present appeal in which questions of law those have been raised are:

(i) Whether the judgment and decree of the District Judge suffers from perversity being completely contrary 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.

6. 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 from the defendant Bank which is sought to be recovered from the present plaintiff. This fact is not denied by the learned counsel for the respondent-Bank who has rather argued that in any case even if the loan was not availed by Avtar Singh deceased, he stood as a guarantor for Mukhtiar Singh, who has not paid the dues of the Bank, therefore, the Bank has a right to recover against the guarantor. It also not in dispute that facing difficulty about the pleadings, the Bank had filed an application to amend the written statement to incorporate the pleadings that the deceased Avtar Singh was not the loanee but the guarantor, but the said application was dismissed vide order dated 6.6.2006 as the defendants were not allowed by the trial court to amend the pleadings. The defendants did not challenge the said order dated 6.6.2006 by way of revision before this Court and that order became final between the parties. Now the question arises for consideration before this Court is as to whether evidence beyond the pleadings can be considered for the purpose of decreeing or dismissing the suit. In this regard, counsel for the appellant has relied upon decision of the Supreme Court in the case titled as Prataprai N. Kothari v. John Briganza, 1999 (3) RCR (Civil) 119 : 1999 (2) CCC 568 (SC) and Maghar Singh v. Gurmel Singh, 2003 (3) RCR (Civil) 546 : 2003 (3) SCC (CCC ?) 96 in which it has been held that in the absence of a plea, no evidence is admissible. Thus, first question that has been raised by the learned counsel for the appellant that findings 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 applied for the loan, but later on had not taken the loan and withdrew his loan application. He thumb marked on some documents for obtaining that loan. Those documents were kept by the bank and were not returned to Avtar Singh. Forms are got signed or thumb marked from the prospective loanee and the same are filled later on.”

7. Thus, the first question of law is decided in favour of the appellant and against the defendants.

8. Now the second question of law that whether by merely placing on record photostat copies of documents liability against a person can be fastened when neither execution of those documents has been proved nor even the original documents are produced in evidence in that regard. Counsel for the appellant has referred to the findings recorded in para 14 of the learned trial court, which reads as under:

“DW2 while facing cross-examination categorically admitted that he had not produced any mortgage deed in the court, which is Ex.D1 nor he did see the original mortgage deed in the Court. Ex.D1 admitted to be a copy of mortgage deed, which was not produced by him. Otherwise, it is admitted by DW2 that mortgage deed Ex.D1 was attested by one V.K.S Malhotra, Advocate and one Madan Lal son of Sarwan Kumar. I observe that none of the attesting witnesses to the alleged mortgage deed was examined. It is evident that the material evidence i.e Original mortgage deed has not come on record. It is further evident that at no point of time, permission for proving the 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 R.V.F Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple, 2004 (4) RCR (Civil) 704 (SC) 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 is tendered and not subsequently.”

In this regard, the Ld. counsel for the plaintiff also referred as Narbada Devi Gupta v. Birendra Kumar Jaiswal and Anr., 2003 (4) RCR (Civil) 693 (SC) in which their Lordship has held:—

“Mere production and making of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence. Situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the Court.”

Therefore, in view of the citations above referred by the Ld. counsel for the plaintiff to which no controverting citation was referred by the Ld. Counsel for the defendants, I observe that merely marking of a Ex.D1 on the copy of the mortgage deed does not dispense with the mode of proof of a document.”

Furthermore, DW2 admitted that D2 is the copy of which no original was seen by the DW2. There is no signatures or thumb impressions of Avtar Singh on Ex.D2 Ex.D3 is also stated to be attested copy, but not attested by DW2. With regard to Ex.D4, which too is admitted the copy stated to had not been produced by DW2 nor its original of the same was seen and Ex.D4 stated to had been prepared by Patwari. With regard to Ex.D5, which too is admitted to be a copy and original does not bear the signatures of DW2 nor prepared by him. The original also do not bear thumb impressions 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.”

9. 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, judgment and decree of the first Appellate Court are both contrary to the settled law, therefore, the same is hereby set aside and judgment and decree of the trial Court is restored. The appeal is allowed with costs.

Appeal allowed.