RSA 97/2011 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY This appeal witnesses an assailment to the judgment and order dated 31.03.2009, passed by the learned Civil Judge, Barpeta, in TA No. 16/2008, dismissing the sa me and affirming the judgment and decree dated 25.04.2008, passed in TS No. 249/ 2006 by the learned Munsiff No. 1. I have heard Mr. UC Rabha, learned counsel for the appellant. For the order proposed to be passed, it is not considered necessary to issue not ice to the respondents. The respondents as plaintiffs instituted the aforementioned suit praying for a d ecree for declaration of their right, title, interest in and possession of the s uit land described in the schedule to the plaint and also for the cancellation o f the mutation of the father of the present appellants/defendants vis-a-vis the same. The pleaded case of the respondents-plaintiffs was that the suit land had been purchased by their father Abdul Karim Akand (since deceased) by a registere d sale deed No. 502/66, dated 18.01.1966 and since then he had been in possessio n thereof. The suit land was also mutated in his name and that after his death t he same devolved on the respondents/plaintiffs as his legal heirs. According to them, the father of the present appellants, however, got the suit land described in Schedule Ka to the plaint (which included the suit land described in Schedul e Kha) in his name on 11.12.1967 by getting the same, in favour of their father, cancelled. When their father came to know of this illegal and fraudulent mutati on and objected thereto, the present appellants claimed that the suit land had b een purchased by their father from the predecessor-in-interest of the respondent s. This very plea was taken by the appellants/defendants in the suit. They contende d in particular that the land described in Schedule Kha to the plaint had been p urchased by their father by a registered sale deed dated 29.01.1966 from the fat her of the respondents/plaintiffs and that he had, thereafter, been in possessio n thereof after obtaining due mutation. The appellants/defendants therefore, con tended that the respondents/plaintiffs had no right, title, interest in and poss ession over the suit land. On the basis of the pleadings of the parties, issues were framed, of which the f ollowing is of utmost relevance: - 2. Whether the plaintiffs have right, title, interest and possession over the s uit land? The learned Courts below on a consideration of the pleadings of the parties and the evidence on record, have decreed the suit concurrently in favour of the resp ondents/plaintiffs. In course of the evidence, the respondents/plaintiffs introd uced the certified copy of the sale deed dated 18.01.1966, whereby, their father had purchased the suit land. The learned Courts below noticed by analyzing the evidence both oral and documentary that inspite of their claim of purchase of th e suit land, the appellants/defendants had not produced the sale deed in origina l and instead produced a photo copy thereof. According to the learned Courts bel ow, having regard to Sections 61, 62, 64 & 65 of the Indian Evidence Act, 1872, in absence of any factual foundation, introduction of that document as a seconda ry evidence of the sale transaction was impermissible in law. On a comparative a ssessment of the oral evidence as well, it was concluded that though the appella nts/defendants had claimed to have purchased the suit land from the father of th e respondents, they had failed to prove the same. This, the learned Courts below concluded to be an admission on the part of the appellants/defendants’ of the r ight, title and interest of the respondents/plaintiffs in the suit land on one h and and their failure to prove purchase thereof by their father from the father of the respondents/plaintiffs. In that premise, the learned Courts below consist ently held in favour of the respondents/plaintiffs and decreed the suit at both the levels. Mr. Rabha, has argued that as the original of the sale deed dated 29.01.1966, wh ereby, the appellants/defendants had purchased the land described in the schedul e to the plaint from the father of the respondents/plaintiffs, was laid with the Bank, the appellants/defendants were unable to produce the same before the Cour t and, therefore, the photo copy thereof, by way of secondary evidence ought to have been acted upon by the learned Courts below. In the backdrop of the pleadin gs of the parties and the evidence on record as alluded hereinabove and taken no te of by the learned Courts below in details as well as the mandate of Section 6 5 of the Indian Evidence Act, 1987, this plea, at this stage, in the opinion of this Court, is untenable in law. On queried by this Court, Mr. Rabha has candidly conceded that neither during th e trial of the suit nor at the hearing of the appeal before the learned Court be low, the appellants/defendants had laid evidence/materials to provide the founda tion for introduction of the photo copy of the sale deed dated 29.01.1966 as sec ondary evidence as enjoined by Section 65 of the Indian Evidence Act, 1872. In t his view of the matter, having regard to the rival stands of the parties and the materials on record, no interference with the judgment and order is warranted. The appeal fails and is, thus, dismissed. No costs.