JUDGMENT

H.N. Agarwal, M. - This is a second appeal against the judgment and decree dated December 31, 1973 passed by the Addl. Commissioner, Faizabad Division in Appeal No. 2031 Sultanpur reversing the order dated February 1, 1973 passed by the Assistant Collector, First Class, Amethi in case No. 27/177 of 1970 under sections 229/209 of the U.P.Z.A. and L.R. Act.

2. I have heard the learned counsel for the parties and have gone through the record.

3. The appellants, Ram Anjore, Ram Kripal and Ram Anjore had filed a suit seeking declaration of their rights and the ejectment of the defendant-respondents Nos. 1 and 2 Haushila Prasad and Bindadin as trespassers. The trial court decreed the suit. Haushila Prasad and Bindadin filed an appeal which was allowed by the lower appellate court and the case was remanded to the trial court for retrial. The second appeal has been filed against this order of the lower appellate court.

4. The main contention of the learned counsel for the appellants is that the lower appellate court has mis-interpreted Sections 61, 62, 64 and 65 of the Evidence Act and provisions contained under Order VI, Rules 2, 3 and 4, Civil Procedure Code. According to the learned counsel, no objection was raised in the trial court regarding admissibility of the sale executed in favour of the plaintiff, and the objection as to admissibility could not be raised for the first time before the lower appellate court. Further, the trial court had recorded a finding that the original sale deed had been lost and, therefore, it admitted the secondary evidence as to the existence and contents of the document as required under the law, and the lower appellate court had no jurisdiction to interfere with the discretion exercised by the trial court on the point of admissibility of the sale deed.

5. The learned counsel for the respondents has, on the other hand contended that the secondary evidence of the sale deed would not be admissible unless primary evidence is proved to have been lost or destroyed.

6. Section 64 of the Evidence Act reads as follows:

"64. Proof of documents by primary evidence. Documents must be proved by primary evidence, except in the cases hereinafter mentioned."

7. Section 65 of the Evidence Act reads as follows:

"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 of neglect produce it in reasonable time.

(d) When the original is of such a nature as not to be easily movable;

(e) When the original is a public document within the meaning of Section 74;

(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India, to be given in evidence;

(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved is the general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.

In case (b), the written admission is admissible.

In case (e) or (f) a certified copy of the document, but no other kind of secondary evidence is admissible.

In case (g), evidence may be given as to the general result of th