JUDGMENT
Prafulla C. Pant, J.
1. In all these four appeals, facts are similar and common questions of law are involved, as such, the same are being disposed of by this common judgment. Second Appeal No. 587 of 2001 (Old No. 551 of 1987), is directed against the judgment and decree dated 27.10.1986, passed by Additional Civil Judge, Nainital in Civil Appeal No. 121 of 1984, whereby said appeal is dismissed affirming the dismissal of civil suit No. 52 of 1978 by the trial court (Munsif, Kashipur). Second Appeal No. 588 of 2001 (Old No. 552 of 1987), is directed against the judgment and decree dated 27.10.1986, passed by Additional Civil Judge, Nainital, in Civil Appeal No. 119 of 1984, dismissing the same and affirming the dismissal of suit No. 50 of 1978, passed by the trial court (Munsif, Kashipur). Second Appeal No. 589 of 2001 (Old No. 550 of 1987), is directed against the judgment and decree dated 27.10.1986, passed by Additional Civil Judge, Nainital in Civil Appeal No. 120 of 1984, dismissing the same and affirming the dismissal of suit No. 49 of 1978, passed by the trial court (Munsif, Kashipur) and Second Appeal No. 590 of 2001 (Old No. 540 of 1987), is directed against the judgment and decree dated 27.10.1986, passed by learned Additional Civil Judge, Nainital, in Civil Appeal No. 122 of 1984, dismissing the same and affirming the dismissal of suit No. 51 of 1978, passed by the trial court (Munsif, Kashipur).
2. Heard learned Counsel for the parties and perused the lower court record.
3. Brief facts of the case relating to Second Appeal No. 587 of 2001, are that plaintiff/appellant-Sudhir Kumar, instituted suit No. 52 of 1978, with the pleading that he is recorded tenure holder (bhumidhar) of plot No. 144 M measuring area 9.90 Acres, situated in Village Kharmasi, Tehsil Kashipur, District Nainital (now part of District Udham Singh Nagar). It is further pleaded in the plaint that the plaintiff/appellant is in possession of the land through his Manager-K.K. Bhatia, who is cultivating the land on behalf of the plaintiff. Defendants/respondents forcibly want to take possession of aforesaid land and they made an attempt to this effect on 22.03.1978. With these pleadings, plaintiff sought suit for permanent injunction against the defendants/respondents that they be restrained from interfering in the possession of the plaintiff over the land in suit No. 52 of 1978.
4. In Second Appeal No. 588 of 2001, brief facts of the case are that plaintiff-Vijay Kumar instituted suit No. 50 of 1978, with the pleading that he is recorded tenure holder of plot No. 144 M, measuring area 0.25 Acres, plot No. 145 M, measuring area 0.45 Acres, plot No. 146 M, measuring area 8.94 Acres, plot No. 147 M measuring area 0.38 Acres and plot No. 155 M, measuring area 1.05 Acres of land, situated in Village Kharmasi, Tehsil Kashipur. It is further pleaded in the plaint by the plaintiff/appellant that the plaintiff is in possession of the land in suit through his Manager K.K. Bhatia, through whom the land is being cultivated. It is alleged that the defendants/respondents forcibly want to take possession of the land and they made an attempt in this regard on 22.03.1978. With these pleadings, the plaintiff/appellant sought relief of permanent injunction in the suit restraining the defendants/respondents from interfering in the possession of the plaintiff over the land in suit No. 50 of 1978.
5. In Second Appeal No. 589 of 2001, brief facts of the case are that plaintiff/appellant Subhash Mittal instituted suit No. 49 of 1978 with the pleading that he is recorded tenure holder (Bhumidhar) of plot No. 155 M measuring area of 15 Acres, situated in Village Kharmasi, Tehsil Kashipur. It is further pleaded in the plaint that he is in possession of the land through his Manager K.K. Bhatia, who is cultivating the land on his behalf. It is further pleaded that the defendants/respondents forcibly want to take possession of the land in suit and they made an attempt in this regard on 22.03.1978. With these pleadings suit was filed by the plaintiff for permanent injunction restraining the defendants/respondents from interfering in the possession of the plaintiff over the land in suit No. 49 of 1978.
6. In Second Appeal No. 590 of 2001, brief facts of the case are that the plaintiff/appellant Naresh Kumar instituted suit No. 51 of 1978, with the pleading that he is recorded tenure holder (bhumidhar) of plot No. 141/2M, measuring area 0.16 Acres. Plot No. 142/2 M measuring area 3.30 Acres and plot No. 144 M measuring area 15.79 Acres, situated in Village Kharmasi, Tehsil Kahsipur. It is further pleaded in the plaint that the plaintiff/appellant is in possession of the land through his Manager K.K. Bhatia, who is cultivating the land on his behalf. It is further pleaded that the defendants/respondents want to take forcible possession of the land and they made an attempt in this regard on 22.03.1978. With these pleadings plaintiff has sought permanent injunction retraining defendants from interfering in his possession over land in suit No. 51 of 1978.
7. All the aforesaid four suits were instituted in the court of Munsif, Kashipur, and defendants/respondents are common in suits. Separate written statements were filed in all the four suits but pleas taken in the written statements are common to all. In the written statements it is admitted that the plaintiffs/appellants are the recorded tenure holders (bhumidhars) of the land in suit but it is pleaded that plaintiff4s Manager and power of attorney holder Shri K.K. Bhatia, executed an agreement of sale in favour of the defendants and accepted the consideration of Rs. 3,50,000/-. In pursuance of the agreement, the defendants were handed over possession of the land in suits on 12.01.1977. And since then the defendants are in possession of the land. It is further pleaded by the defendants that they are in cultivation of the land and have sown and harvested crop of wheat in the year 1978, when the suit was filed. Apart from this, it is pleaded that since 1977, huts and houses of the defendants are built over the land in suit. With these pleadings it is denied that the plaintiffs are entitled to the relief sought by them.
8. In each of the four suits, following two issues were framed by the trial court:
1. Whether the plaintiff is in possession of the land in suit?
2. To what relief, if any, the plaintiff is entitled?
9. After recording the evidence and hearing the parties, the trial court gave finding in all the four suits that plaintiffs failed to prove their possession over the land in suits and dismissed the suits vide separate judgments and decrees dated 12.11.1984, passed in the aforesaid suits. Aggrieved by said judgments and decrees dated 12.11.1984, passed in four suits, Civil Appeal No. 121 of 1984, preferred by plaintiff-Sudhir Kumar, Civil Appeal No. 119 of 1984, preferred by plaintiff-Vijay Kumar, Civil Appeal No. 120 of 1984, preferred by plaintiff-Subhash Mittal and Civil Appeal No. 122 of 1984, preferred by plaintiff-Naresh Kumar, before the lower appellate court. All the four appeals, which were heard by the learned Additional Civil Judge, Nainital, were dismissed vide impugned judgments and decrees passed by the said court, concurring with the findings of the trial court that the plaintiffs failed to prove their possession over the land in suits. Hence these second appeals were filed before Allahabad High Court on 20.02.1987. While admitting these appeals, no specific substantial questions of law were formulated by the Allahabad High Court. All the four appeals were received by this Court under Section 35 of U.P. Reorganisation Act, 2000, for their disposal. This Court on 29.07.2004 and 15.02.2008, formulated following substantial questions of law, which are common in all the four appeals:
1. Whether the Photostat copies of the documents are admissible in evidence in the facts and circumstances of the case?
2. Whether the judgment of the lower appellate court is vitiated in law due to non compliance of provisions of Order 41 Rule 3(2) of Code of Civil Procedure, 1908?
10. Answer to substantial questions of law:
Admittedly, plaintiffs are recorded tenure holders (bhumidhars) of land in suits. The dispute between the parties is as to the possession of land. The plaintiffs4 case is that they are in possession of the land, which is denied by the defendants who have pleaded in their written statements that they are in actual physical possession and cultivation of the land in suits. Both the courts below have given concurrent findings of fact that plaintiffs are not in possession of the land in suits. And on that ground the suits for prohibitory injunction are dismissed by the trial court, and affirmed by the lower appellate court. It is settled principle of law that findings of fact ordinarily cannot be interfered with by this Court in exercise of its powers in second appeal. However, if finding of fact is found perverse or totally against the record or illegally recorded, the second appellate court can set aside the finding.
11. It is pertinent to mention here that from the pleadings of the parties, it is clear that in all the four suits, plaintiffs claim their possession through their Manager K.K. Bhatia, while the defendants claim that it was K.K. Bhatia, who transferred possession of the land in suits to them after accepting consideration of Rs. 3,50,000/-. What is being hammered in these appeals by the plaintiffs/appellants is that the original agreement of sale which is said to have been executed by Shri K.K. Bhatia, in favour of the defendants was not filed by them and Photostat copies of the agreement could not have been read in evidence. It is true that original agreement of sale relied by defendants is not filed by them. In this connection before the trial court, a document is filed by the defendants in support of the oral evidence that the original agreement has lost in fire. Where the original is lost, secondary evidence can be read in evidence whether it is in the form of photocopy or otherwise true copy, provided the same is proved to be the correct copy of the original. Where the primary evidence or the original document is in possession of the party such party cannot lead secondary evidence, the same applies to the photocopies also. And photocopies in such cases are not admissible in that situation. But it is pertinent to mention here that an unregistered agreement of sale of immovable property cannot be relied upon by a party for performance of the agreement, but it can be seen only for the collateral purposes. Even if the photocopies filed by the petitioners of the agreement of sale are treated inadmissible in evidence, this Court does not find any error of law committed by the courts below in arriving at the conclusion that the plaintiffs could not prove their possession over the land in suits. Admittedly, plaintiffs were not physically cultivating the land and they have taken the plea that they were getting cultivated it through their Manager K.K. Bhatia. The plaintiff should have produced K.K. Bhatia in oral evidence to state that he was getting cultivated the land on behalf of the plaintiffs. He has not dared to enter into the witness box. It supports the defendants pleadings and the oral evidence adduced on their behalf that K.K. Bhatia transferred the possession of land to them after receiving consideration from them.
12. Referring to Section 1 A of Power of Attorney Act, 1882, which defines expression 4Power of Attorney4 it is argued on behalf of the appellants that they have not authorised K.K. Bhatia to execute any agreement of sale. Had the defendants instituted a suit for specific performance of contract, it would have been relevant to see whether the person executing the agreement on behalf of the plaintiffs had the power of attorney to execute the agreement or not. But in the present case, the defendants have not instituted any such suit. As such, even if there was no power of attorney on behalf of the plaintiffs, who are admittedly living in Delhi, and were getting their land cultivated through their Manager K.K. Bhatia, there appears no illegality on the part of the courts below in arriving at the conclusion that as to the possession over the land in suits, plaintiffs failed to prove the same. It is admitted by learned Counsel for the plaintiffs/appellants that in the proceedings under Section 145 Cr.P.C., initiated by plaintiffs, they lost the case finally. Reliance is placed on behalf of the plaintiffs/appellants in Intercontinental Agencies Pvt. Ltd. v. Amen Chand Khanna , is of no help to them as said case pertains to the seized goods, which were in the custodia legis and which can be delivered to the owner under Section 451 or 452 of Code of Criminal Procedure, 1973.
13. Copy of P.A. form No. 24 (a revenue record) filed before the trial court shows that the defendants names are entered in the revenue record in column No. 6 in respect of the land in suits showing their possession over the land while names of the plaintiffs are shown in column No. 4 as tenure holders. On behalf of the plaintiffs/appellants it is argued that said record is not maintained in accordance with the provisions of U.P. Land Record Manual and as such cannot be read in evidence. In this connection attention of this Court is drawn to Samay Singh v. Mohar Chand 1988 R.D. Pg. 151 in which Board of Revenue, U.P. has rejected the entries made by Lekhpal on the ground that the same were not made in accordance with Para-423 of U.P. Land Record Manual. The facts of said case were different and in said case names of the defendants were entered in khatauni (record of title), on the basis of adverse possession substituting their names in place of recorded tenure holder. In that situation, the Board of Revenue observed that entries in PA 10 should have been made in accordance with the provisions of U.P. Land Record Manual.
14. Attention of this Court is drawn on behalf of plaintiffs/appellants to the copy of judgment and order dated 13.06.1990, passed by Board of Revenue, Allahabad in Second Appeals No. 79-83 of 1984-85 between the parties, directing that the possession of the plaintiffs should be restored over the land in suits. Learned Counsel for the respondents pointed out that this judgment is subjudice before this Court in another writ petition filed by the defendants. Having gone through the judgment and order dated 13.06.1990, passed by the Board of Revenue, it is clear from said order that on the date of institution of suit, the plaintiffs were not in possession and as such in the opinion of this Court, the plaintiffs were not entitled to the decree of prohibitory injunction. As to the relief of possession they have rightly approached the revenue court, as is apparent from order dated 13.06.1990, passed by Board of Revenue.
15. Learned Counsel for the appellants failed to show me that how lower appellate court has failed in complying provision of Rule 3 (2) of Order XLI of Code of Civil Procedure, 1908. Under Rule 3 of Order XLI of the Code, the lower appellate court can reject the memorandum of appeal, which is not drawn and as required under Rule 1 of said Order. It can also be rejected on the lines mentioned under Order VII Rule 11 of the Code. As far as the points of determination to be framed by the lower appellate court is concerned, there is only one point, which was involved before said court whether the plaintiffs have proved their possession over the land in suits or not and the same has been well discussed in the impugned judgment. After hearing the parties as such even if no point of determination is formulated by lower appellate court it is not fatal in the facts and circumstances of the case. Accordingly, both the questions stand answered in favour of defendants/respondents.
16. For the reasons, as discussed above, all the above four appeals are liable to be dismissed. The same are dismissed. However, no order as to costs.