Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Regular Second Appeal No. 456 of 2002. Judgment reserved on : 2.7.2010. Date of Decided : July 28, 2010. Jagjeet Singh. …… Appellant. Versus Gopal Singh and another. …….Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? For the appellant : Mrs. Jyotsna Rewal Dua, Advocate. For the respondents : Ms. Ruma Kaushik, Advocate, for respondent No.2. Respondent No.1 ex parte. Surinder Singh, J 1. This second appeal was admitted on 10.10.2002, on the following substantial question of law:- “Whether the lower appellate Court has misinterpreted and misconstrued the two agreements, i.e. Ex.P-1 and D- 2 whereas the same were rightly construed by the trial Court? 2. The appellant herein was a plaintiff before the trial Court. He had filed a suit against the defendants-respondents, seeking the relief of declaration with a consequential relief of permanent prohibitory and mandatory injunction. It was his case that Gopal - 2 - Singh (respondent No.1) was owner in possession of the suit land. He was in the need of money, thus he approached the appellant in the month of October, 1994 and made an offer to sell it, for a consideration of Rs.9,000/-. This proposal was accepted, consequently, the agreement Ex.P1 was executed on 11.10.1994. The appellant paid the earnest money to the tune of Rs.4,500/- to him in the presence of the witnesses and respondent No.1 agreed to execute a sale deed on the receipt of the balance amount. It was also the case of the appellant that the balance amount was paid on 10th May, 1995, which was received by him and executed a receipt, but he kept on dillydallying the execution of the sale deed. Later, the appellant came to know that the said respondent was about to sell the suit land to his servant to frustrate the agreement, hence, he filed a suit claiming himself owner of the land in dispute with consequential relief to execute the sale deed in his favour and further sought the relief that the said respondent be restrained from causing interference in his possession. Later the suit land was sold to respondent No.2. 3. Respondent No.1 resisted and contested his suit and questioned his locus-standi and maintainability of the suit, inter alia also took up the point of valuation. It was specifically averred on merits that he was only the owner of half share of the suit land. He denied the execution of agreement to sell, as alleged. - 3 - 4. Respondent No.2 is the Laxmi Devi, who besides taking the preliminary objections averred that the respondent Gopal Singh was owner only to the extent of half share in the suit land i.e. 2 bigha 10 biswas and he was not legally competent to execute an agreement to sell to the extent of her share. She further alleged that the agreement aforesaid and the receipt both were forged and fabricated documents. Possession of the appellant was denied, rather in turn, she asserted her own possession over the suit land. She also set up the counter claim against the appellant, alleging that she is bonafide purchaser and in lawful possession of the suit land with effect from the execution of the agreement to sell dated 3.9.1994 for a consideration of Rs.9,000/-. She further stated that respondent No.1 and his mother had received the amount of Rs.5,000/- from her. They also acknowledged the receipt and undertook to execute the sale deed on the receipt of the remaining amount, which was also paid on 10th January, 1995. She further stated that she spent a huge amount to make it cultivable and sought prohibitory injunction. 5. In reply, the counter claim has been denied and even paras of the plaint were reasserted in replication. 6. The parties were at issues, which are as follows:- 1. Whether the plaintiff is entitled for the decree of declaration, as alleged? …OPP. - 4 - 2. Whether the plaintiff is entitled for the decree of mandatory injunction, as alleged? …OPP. 3. Whether the plaintiff is entitled for the decree of permanent injunction, as alleged? …OPP. 4. Whether the suit is not maintainable in the present form as it is filed with full of malafides? …OPD. 5. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? …OPD. 5(a). Whether the plaintiff has no locus-standi to file the present suit? …OPD-2. 5(b). Whether the suit in the present form not maintainable as the plaintiff is not in the physical possession of the suit land, as alleged? …OPD-2. 5(c). Whether the plaintiff has not come to the court with clean hands and has suppressed material facts from the Court? If so, its effect? …OPD-2. 5(d). Whether the suit is bad for non-joinder of necessary parties as Smt. Kanta Devi is necessary party. …OPD-2. 5(e). Whether the suit is not properly valued for the purpose of court fees and jurisdiction? …OPD-2. 5(f). Whether defendant No.2 is in the physical possession of the suit land at the spot and, as such, he is entitled for the decree of permanent prohibitory injunction against the present plaintiff? …OPD-2. 5(g). Relief. 7. The plea of the appellant with respect to that he has become owner in possession of the suit land did not find favour with the learned trial Court, therefore, a decree for mandatory injunction was declined, but however, it was held that he was in possession of the suit land, thus a decree for prohibitory injunction was passed. So the counter claim filed by respondent No.2 was held to be untrue, as such it was dismissed. - 5 - 8. Feeling aggrieved and dissatisfied by the impugned judgment and decree passed by the learned trial Court, the respondent No.2 filed an appeal on the ground that the agreement Ex.P1 set up by the appellant is forged and fabricated document with respect to the suit land bearing khata khatauni No.29/44, which was not in existence on October 11, 1994 when the alleged agreement was executed, but this khata khatauni was allotted in January, 1996, so the agreement wherein above khata khatauni was mentioned and its receipt both were fabricated except the statement of the plaintiff, which is false. 9. The first appellate Court re-examined the evidence on record and found favour in the contention raised by respondent No.2, as such, her appeal was allowed, consequently the impugned judgment and decree was set-aside and her counter claim was decreed. The appellant was permanently restrained from causing any interference into the suit land. The appellant- plaintiff was also saddled with the cost quantified at Rs.1,000/- for bringing a suit on forged documents. 10. The plaintiff/ appellant felt dissatisfied by the judgment of reversal passed by the learned District Judge, hence this appeal on the ground that the agreement Ex.P1 stands proved and was not a forged document and further that the appellant was in possession of the suit land and respondent No.2 became - 6 - interested only when respondent No.1 did not choose to contest the suit and based her claim on a forged agreement Ex.D-2 and she did not take the steps to institute a suit against respondent No.1 the original owner. 11. I have heard the learned counsel for the parties and have gone through the record. 12. On the judicial scrutiny, I find that the learned first appellate Court has not misinterpreted and misconstrued both the agreements Ex.P-1 and Ex. D-2, for which more than one reason can be assigned. 13. Firstly, the agreement Ex.P1 was allegedly executed on 11.10.1994. It refers to the suit land by khata khatauni No.29/44. AW-2 Ashok Kumar, the then Patwari testified that the jamabandi for the years 1994-95 Ex.P-3 was prepared after June 15, 1995, which was verified by the Kanungo on 30th August, 1995. It is evident from the copy of verification report Ex.AW2/A. He further stated that the jamabandi, copy of which is Ex.AW2/B was submitted in the Tehsil office on 5.5.1995 and was attested by the Assistant Collector on 30.1.1996 (Ex.AW2/C). He also stated that when the agreement in question was executed, said khasra was recorded as khata/ khatauni No.26/41, which was later assigned as khata/ khatauni No.29/44. Thus, it was not even comprehended that it will have khata khatauni No.29/44 when said agreement was executed. Both PW-1 and appellant stated - 7 - that a chit was given by the Patwari concerned which referred to the khata/ khatauni No.29/44 with respect to the suit land, but no such chit was produced in evidence to lend strength to his version. 14. Secondly, appellant stated that, he paid an amount of Rs.5,000/- to respondent Gopal Singh on October 11,1994; on the day when the agreement was executed he had seen the jamabandi Ex.P3 for the years 1994-95, but as per the statement of Patwari, it was absolutely not in existence on that day. His statement is contradicted by the Patwari as aforesaid. Thus, it cannot be said that the agreement Ex.P1 is a genuine document. 15. Thirdly, the suit land was owned by respondent No.1 and his mother in equal shares, as is evident from the revenue papers on record, thus he could not have agreed to sell the share of his mother and put the appellant in possession of the land in dispute. 16. Fourthly, in his statement as PW4 in rebuttal recorded before the learned trial Court, stated having delivered the possession by respondent No.1 in the month of May, 1995, which is contrary to the averments made in the agreement aforesaid and also his own case initially pleaded that the possession was delivered to him on the date of execution of the said agreement i.e. on 11.10.1994. 17. Fifthly, PW5 Man Bahadur produced by the appellant before the learned trial Court categorically stated in his cross- - 8 - examination that the suit land was in possession of respondent No.1 Laxmi Devi, therefore, the learned trial Court did not properly appreciated the above contradictions qua the agreement Ex.P1, thus wrongly held that it was legal and a valid document, which was appreciated in appeal by the learned first appellate Court in right perspective. 18. On the other hand, the agreement Ex.D-2 executed on 3.9.1994 stands proved on record as having been executed by respondent No.1 and his mother for a consideration of Rs.9,000/- which was scribed by DW2 Parshottam Saini, Advocate, in the presence of DW-5 Mukesh Aggarwal. The said respondent too categorically testified that the earnest money was paid to the tune of Rs.5000/- and balance amount of Rs.4,000/- on 10.10.1995 and receipt to this effect was proved. She also deposed that she was put in possession and so also the documents corroborate this fact, which fact has been corroborated by PW5 as aforesaid. The statement of DW-3 Rai Singh and DW-4 Vijay Raj further lend support to her version. Nothing has come on record to reflect that the agreement Ex.D-2 was a forged or a tainted document. 19. Thus, for the above reasons, the first appellate Court has rightly examined and assessed the evidence on record. In my opinion, the first appellate Court correctly appreciated the evidence holding that the learned trial Court’s logic behind rejection of the evidence of the witnesses of respondent is fraud. - 9 - Thus, I find that the counter claim of respondent No.1 was rightly decreed by the first appellate Court after reversing the impugned judgment and decree passed in favour of the appellant. Respondent No.1 is proved to be in possession of the suit property. 20. On the careful examination of the evidence on record, I do not find any flaw in the reasons given by the learned first appellate Court, which could impel me to reverse the judgment and decree passed by the learned trial Court. In my considered opinion, the first appellate Court did not misinterpret and misconstrue the agreements, more specifically, on examining the additional evidence, which crystallised the point in issue. The substantial question is accordingly answered. The appeal is devoid of any merit, hence dismissed. 21. The order dated 10.10.2002 passed in CMP No.877 of 2002 staying the execution of the impugned decree is vacated. (Surinder Singh) Judge July 28, 2010. (Pds)