Bapna, J. - (1.) THIS is a second appeal by the defendant in a suit for injunction.
(2.) THE respondent filed a suit in the Court of Hakim, Pali on 30th September, 1944 against the appellant on the allegations that in Mohalla Brahampuri at Pali, there was a plot of land marked ABCD in the plan attached to the plaint, which was divided in equal portions between the parties and it was agreed on Besakh Sudi 5, Smt. 1999 that each co-sharer will leave a strip 3 ft. wide out of his land towards the other party so as to leave a way 6 feet wide between the two plots on which construction was to be made. It was alleged that the plaintiff left 3 feet towards the side of the defendant but that the defendant was bent upon making construction on the entire plot falling to his share without leaving a strip of land 3 feet wide out of his land as agreed upon. THE defendant denied the agreement and asserted his right of making construction on the entire plot falling to his share. THE plaintiff had filed along with the plaint a copy of the agreement keeping the original with him. When the case came up for trial the original was stated to have been lost and the trial court allowed the plaintiff to lead secondary evidence. After trial, the Munsif Pali, to whom the case had been transferred, held on the basis of secondary evidence that the plaintiff had proved the contract relied upon by him and that he had also performed his part of the contract by leaving a strip of land 3 feet wide from his land, and decreed the suit. THE same judgment was upheld on appeal. In this court, it is argued, as was argued in the lower court, that the original agreement which was denied by the defendant was stated by the plaintiff to have been executed on a stamp of one anna, while according to the law in Marwar, an agreement of that nature required to be executed on a stamp of Re. 1/-, and that an insufficiently stamped document when lost, its secondary evidence was inadmissible under the law. The learned Civil Judge has repelled this contention on an argument that secondary evidence can be admitted on payment of penalty and that the objections cannot be raised after the evidence had been admitted in the trial court in the same way as the admissibility of an unstamped document cannot be objected to after the document had once been admitted in evidence. The view of law taken by the lower court is entirely incorrect. It is settled law that the contents of a document which is required to be executed on a stamp, if not stamped or is insufficiently stamped connot be proved by secondary evidence 26 I. A. 262, (The Rajah of Bobbili vs. Inuganti China Sitarasami Guru ). It is the original document which, if unstamped or insufficiently stamped, can be validated by payment of stamp duty and penalty under s. 35 of the Stamp Act. If such document is lost, the penalty cannot be lavied. S. 65 of the Evidence Act which permits production of secondary evidence in respect of lost documents presupposes that but for one or two more of the barriers to its production stated in the section, the document would have been capable of proving its contents under s. 64 read with s. 62 of the Evidence Act. A careful examination of the language of s. 36 of the Stamp Act makes it clear that it is applicable only when an unstamped or insufficiently stamped instrument has to be admitted in evidence but where the instrument itself is not produced, the section has no application to the secondary evidence. The secondary evidence led in this case being inadmissible, the contract relied upon by the plaintiff cannot be held to have been proved. The appeal is, therefore, accepted, the judgment and decree of the lower court is set aside, and the suit is dismissed with costs throughout. .;