1. This appeal by the defendants is directed against the confirming judgment and decree dated 18.2.2011 passed by III Additional Judge to the Court of Ist Additional District Judge, Gwalior in Civil Appeal No.24-A/2010. Plaintiff's suit for declaration and permanent injunction has been decreed vide judgment and decree dated 30.7.2010 passed in Civil Suit No.44-A/2009.

2. Facts necessary for disposal of this appeal are to the following effect:

Plaintiff – a registered Cooperative Housing Society with Registration No.040 dated 8.8.1966 filed a suit inter alia contending that the Society is engaged in activity of providing small plots to its members for residential purposes by division of land of its ownership. Plot No.59 situated at Govindpuri, Naulakha Pared, Thatipur, Morar is the suit property. Vide registered sale deed dated 3.8.1988 (Ex.P-7), the said property was transferred to one of its members namely Lt. Col. Indrapal Singh s/o Ganga Singh Chauhan having membership number 694 of the Society. However, at a later point of time, Col. Indrapal Singh submitted an application (Ex.P-8) before the management of the Society for surrendering the plot along with original sale deed. The same was approved. As such, the suit property again became available for sale to other members and the same was sought to be allotted to one of the members namely Munna Singh s/o Pooran Singh. On publication of notice in that behalf in the Hindi Daily Dainik Bhaskar dated 10.9.2001, appellant/defendant No.2 objected to the same claiming to have title and possession of the suit property with the assertion that the same was purchased by him from defendant No.1 Himandri Ghosh who had acquired right, title and interest therein after demise of his mother Monika Ghosh. She was a member of the Society and the suit plot was sold to her vide registered sale deed dated 26.12.1970. However, original sale deed was never submitted before the Court, instead certified copy thereof was filed in the trial Court. Plaintiff contended that Monika Ghosh was never a member of the Society. The suit plot was not sold to her. As such, defendant no.1 had no right, title or interest therein to transfer the same in favour of defendant No.2 vide alleged sale deed dated 12.2.1992 (Ex.D-3). It was also denied that the suit property is in possession of defendant No.2.

On the aforesaid pleadings, the trial Court framed the issues and allowed parties to lead evidence.

3. Plaintiff examined Vice President of the Society namely Yateendra Singh Tomar as PW1 and Col. Indrapal Singh Chouhan as PW2. PW1 deposed about his authority to file the suit on behalf of the plaintiff/Society with due reference to by law 39(2) of the Society and proved the authority letter (Ex.P-2). Indrapal Singh Chouhan (PW2) has deposed that the Society had executed the sale deed (Ex.P-7) transferring the title and possession of the suit property in his favour. There was no challenge to the aforesaid factum of execution of sale deed by the defendants as no evidence in that behalf was led. The original sale deed (Ex.P-7) was, accordingly, found proved.

4. Defendant No.2 produced certified copy of the sale deed (Ex.D-1) dated 26.12.1970 in support of his contention that the same was executed prior to execution of the alleged sale deed dated 3.8.1988 (Ex.P-7) in favour of Indrapal Singh Chouhan. However, to establish primacy of the said sale deed being of earlier point of time, plaintiff neither produced the original sale deed dated 26.12.1970, nor, sought permission of the trial Court to lead secondary evidence. As a result, certified copy of the aforesaid sale deed was not found to be admissible in evidence by the trial Court by its order dated 30.7.2010 passed separately and the document was not marked as exhibit. Further, defendant No.1 remained ex parte. Defendant No.2, to prove the sale deed dated 12.2.1992 (Ex.D-3) allegedly executed by power of attorney holder of defendnat No.1 Himendri Ghosh, neith