IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 87 of 2007. Judgment reserved on : 24.06.2011. Date of decision: 27.06.2011. Shiv Kumar & others. ….. Appellants. Versus Atma Ram & others. ….Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. Lalit Kumar Sehgal,Advocate. vice Mr. Peeyush Verma, Advocate. For the Respondent : Mr. Ashwani K. Sharma, Advocate. No.1. For the Respondents : None. No. 2 to 5. Kuldip Singh, Judge . The appellants are defendants and have come in appeal against the judgment, decree dated 30.11.2006 passed by learned Additional District Judge (Fast Track Court), Una , in Civil Appeal No. 240/2000 RBT 161/2004/2000 reversing judgment, decree dated 29.02.2000 passed by learned Sub Judge 1st Class, Amb, in case No. 21/91. 2. The facts, in brief, are that respondent No.1 had filed a suit for permanent prohibitory injunction restraining the appellants from interfering in any manner, taking forcible possession and demolishing shops of respondent No.1 consisting of two rooms, verandah, as shown in site plan ABCDEF situate on land measuring Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 0-02-64 hectares, Khasra numbers 1241 and 1242 in the khatauni settlement for the year 1988-89, Village Bhater, Tehsil Amb. In alternative, suit for possession after removing tin roof verandah as specified in the plaint. 3. The further case of the respondent No.1 is that suit property is owned and possessed by him and the construction was raised by Bishamber Dass, father-in-law, of respondent No.1. Bishamber Dass bequeathed the suit property to the respondent No.1 vide registered Will dated 16.04.1980 and the mutation No. 958 on the basis of Will has already been attested in the name of the respondent No.1 on 06.09.1980 after the death of Bishamber Dass. 4. The further pleaded case of the respondent No.1 is that in family settlement dated 20.04.1980 between Bishamber Dass and Chaudhary Ram, predecessors-in-interest, of appellants 2,3 and 5, two shops situated on Khasra number 1157 were admitted by Chaudhary Ram to be constructed by Bishamber Dass. The appellants have no right, title or interest in the suit property. Appellants during the pendency of the suit in February, 1991 have taken forcible possession of the shops marked by letters ABCD and have encroached area marked by letters E to F in the site plan. The appellants have also constructed a tin roof verandah by raising pillars on portion ADGH shown in the site plan. 5. The appellants contested the suit by filing written statement and took preliminary objections like maintainability, estoppel and non-joinder of necessary parties and also of mis-joinder. On merits, they denied the correctness of the site plan. It has been 3 alleged that suit property is owned and possessed by appellants No. 2 and 5, in which electricity meters are in the names of appellant No. 2 and appellant No.6 wife of appellant No.5. It has been alleged that respondent No.1 had one small room with verandah in possession which has since been covered and situated towards Western Southern side. It has been admitted that Chaudhary Ram and Bishamber Dass were real brothers. Two shops were constructed by Chaudhary Ram with the help of his sons appellants 2, 3 and 5. The dispute with respect to suit property was settled by way of a writing dated 20.02.1975. The appellants denied the Will of Bishamber Dass propounded by respondentNo.1. They have also denied the family settlement dated 20.04.1980. 6. The replication was filed by respondent No.1. On the pleadings of the parties, the following issues were framed:- 1. Whether plaintiff is entitled to the relief of permanent injunction? OPP. 1-A. Whether defendants encroached upon portion marked ABCD and ADGH being part of 1241, 1242 during the pendency of the suit? OPP. 2. Whether plaintiff is owner in possession of portion ABCD? OPP. 3. Whether suit is bad for non-joinder of necessary parties? OPD. 4. Whether plaintiff is estopped by his act/conduct? OPD. 5. Whether there was a compromise between Bishamber Dass and Chaudhary on 20.2.75 and if so its effect? OPD. 4 6. Whether two rooms and one Verandah with court yard of the suit land is in possession of defendants No. 6 and 2 as owners? OPD. 7. Relief. All issues were answered in negative and the suit was dismissed on 29.02.2000. In appeal, learned lower Appellate Court on 30.11.2006 set aside the judgment dated 29.02.2000 and decreed the suit of respondent No.1 for possession of property shown by letters ABCDEFGH in site plan Ext. PW1/B by removing tin roof verandah shown as ADGH and the central wall from portion E to F as shown in site plan Ex. PW1/B. Hence, second appeal which has been admitted on following substantial questions of law:- 1. Whether the learned appellate Court was correct in relying upon Ex. PW-3/A, which was a family arrangement and registerable under Section 17 of the Registration Act? 2. Whether the learned Court below is correct on basing its judgment and decree on the Will Ex. PW-5/A, which was not executed by Bishamber Dass in favour of Atma Ram and was shrouded with suspicious circumstances? 3. Whether the learned First Appellate Court has erred in law by not dismissing the suit of the respondentNo.1/plaintiff on the ground of non-joinder of the State of Himachal Pradesh as party, notwithstanding the fact that the land upon which the disputed premises were situate belonged to the State of Himachal Pradesh and possession whereof could not have been directed in its absence? 7. I have heard learned counsel for the parties and have also gone through the record. On behalf of the appellants, it has been 5 contended that the learned lower Appellate Court has erred in relying Ex. PW3/A family arrangement for want of registration. The Will Ex. PW5/A of Bishamber Dass in favour of respondent No.1 has not been proved. The State of Himachal Pradesh is the owner of the land and in absence of State of Himachal Pradesh, decree cannot be passed in favour of respondent No.1. The learned counsel for the respondent No.1 has supported the impugned judgment, decree. He has submitted that Ex. PW3/A is admissible for collateral purposes showing possession of Bishamber Dass, predecessor-in-interest, of respondent No.1 over the suit property. The Will Ex. PW5/A has been proved by PW6 attesting witness. No relief has been claimed against State of Himachal Pradesh and, therefore, State of Himachal Pradesh is not a necessary party nor any alleged right of State of Himachal Pradesh has been affected by the decree passed by learned lower Appellate Court. 8. The substantial question of law No.2 is taken first for determination. The case of the respondent No.1 is that Bishamber Dass his father-in-law had executed the registered Will Ex. PW5/A in his favour. PW6 Ranjit Singh attesting witness of the Will has proved the Will. He has proved his signatures and signatures of other attesting witness, so also the testator of the Will. PW5 is the son-in- law of the scribe of the Will, who has identified signatures of scribe on the Will. The Will Ex. PW5/A dated 16.04.1980 is a registered document. The execution of Will Ex. PW5/A has been proved by PW6 attesting witness and PW5. The appellants have not pointed out any specific evidence so as to disbelieve the Will or which creates 6 suspicion regarding the execution of the Will. The Will Ex. PW5/A has been proved, hence, substantial question of law No.2 is decided against the appellants. 9. The learned counsel for the appellants has submitted that learned lower Appellate Court has erred in relying Ex. PW3/A family arrangement in absence of registration. The scope of substantial question of law No.1 is limited regarding admissibility of family arrangement Ex.PW3/A in absence of registration. Assuming that family arrangement Ex. PW3/A requires registration, Section-49 of the Registration Act, 1908, provides that un-registered document can be looked into for collateral purposes. 10. In Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo and others AIR 1981 SC 1937, the Supreme Court has noticed Section 49 of the Registration Act and has held:- “……..Proviso to Section 49, however, permits the use of the document, even though unregistered, as evidence of any collateral transaction not required to be effected by registered instrument. In this view of the legal position the maintenance deed can be looked into for collateral purpose of ascertaining the nature of possession.” 11. The Supreme Court in Roshan Singh and others v. Zile Singh and others AIR 1988 SC 881 has held as follows:- “Even otherwise, the document Exh. P 12 can be looked into under the proviso to S.49 which allows documents which would otherwise be excluded, to be used as evidence of ‘any collateral transaction not required to be effected by a registered instrument’. In Varada Pillai v. Jeevarathnammal, (1919) 46 1nd App 285: (AIR 1919 PC 44) the Judicial Committee of the Privy Council 7 allowed an unregistered deed of gift which required registration, to be used not to prove a gift ‘because no legal title passed’ but to prove that the donee thereafter held in her own right. We find no reason why the same rule should not be made applicable to a case like the present.” 12. In Gangayya and another v. S.Mandan Chand Samdaria and others AIR 1973 Madras 262, it has been held even otherwise though Ex. B-19 is not admissible for proving the terms of the tenancy, it could be relied on for the purpose of proving the nature and character of possession of the defendants and also the date from which such possession in the hands of the defendants commenced. 13. In view of position of law noticed above, Ex. PW3/A family settlement dated 20.04.1980 between Chaudhary Ram and Bishamber Dass , brothers, can be looked into for the purpose that Bishamber Dass had constructed the shops in question irrespective of the non registration of Ex. PW3/A. The substantial question of law No. 1 is decided against the appellants. 14. The respondent No.1 in the suit has not prayed any relief against the State of Himachal Pradesh nor any relief has been granted by the Court against the State of Himachal Pradesh. The decree passed by learned lower Appellate court is not binding on State of Himachal Pradesh, who is not a party in the suit. The decree has determined the rights of the parties in the suit. The rights of State of Himachal Pradesh have not at all been affected by the decree passed by the learned lower Appellate Court. In these circumstances, it cannot be said that decree in absence of State of Himachal 8 Pradesh is wrong. The substantial question of law No.3 is also decided against the appellants. 15. The learned lower Appellate Court has recorded a finding that the appellants have no better title than the respondent No.1 over the suit land. The respondent No.1 has better title than the appellants over the suit land. The appellants have no right to retain the possession of the suit land. The respondent No.1 has right to take back the possession from the appellants. This finding of the learned lower Appellate Court answers the issue No.1-A in favour of respondent No.1 by holding that he has been wrongfully dispossessed during the pendency of the suit from the suit land. 16. The appellants have not established that the decree passed by the learned lower Appellate court is not based upon admissible evidence or material evidence has been discarded. There is no merit in the appeal which is liable to be dismissed. 17. In view of above discussion, the appeal fails and is accordingly dismissed with no order as to costs. June 27, 2011. (Kuldip Singh), ( krt) Judge.