IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 12 of 1997. Reserved on: 14.12.2010 Date of decision: 27.12.2010 Dayal Singh & anr. …. Appellants Versus Anil Kumar Sachdeva ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the appellants: Sh.Bhupender Gupta, Senior Advocate with Ms.Charu Gupta, Advocate. For the respondent: Sh.Karan Singh Kanwar, Advocate. _________________________________________________ Deepak Gupta, J. This Regular Second Appeal is directed against the judgment and decree dated 15.10.1996 passed by the learned District Judge, Sirmaur at Nahan in Civil Appeal No.11-N/13 of 1994 whereby he allowed the appeal filed by the respondent (hereinafter referred to as the ‘defendant’), dismissed the Cross Objections filed by the appellants (hereinafter referred to as the ‘plaintiffs’) 2 and set aside the judgment and decree dated 21.1.1994 passed by the learned Sub Judge, 1st Class, Kandaghat, Camp at Rajgarh, District Sirmaur in Civil Suit No.15/1 of 1990 whereby the suit of the plaintiffs was partly decreed and resultantly, the plaintiffs’ suit has been dismissed. Briefly stated the facts of the case are that the plaintiffs filed a suit before the learned Trial Court in which it was alleged that they had exchanged their property comprised in Khewat/Khatauni 9/12 min. Khasra No.242/12/2 and Khasra No.13 measuring 3 bighas 14 biswas situated in village Neri Jagyala, Tehsil Rajgarh, District Sirmaur, H.P. with the land of the defendant comprised in Khasra No.292/6, Khatauni No.10/13 min., measuring 1-2 bighas and Khata No.9/12 min., Khasra No.9 measuring 2-19 bighas total 4-1 bighas in village Neri Jagyala, Tehsil Rajgarh, District Sirmaur, H.P. According to the plaintiffs, the agreement dated 22.8.1988 vide which this exchange had taken place was void for want of proper stamps and registration. Further according to the plaintiffs, the defendant had promised that he would bring water 3 from ‘Giri’ river or ‘Pervi Khad’ for his factory and out of this water, he would allot 1½” of water for drinking and irrigation purposes to the plaintiffs. According to the plaintiffs, it was orally agreed that this part of the agreement would be complied with within one year. There were other conditions also that even if the factory is closed or the same is transferred, the plaintiffs would have a right to get the water but they would then have to bear the electricity charges for lifting the water. On this basis, the plaintiffs prayed for a decree in the following terms:- “It is, therefore, prayed that this Hon’ble Court may be pleased to pass a decree in favour of plaintiffs against the defendant, ordering the defendant by a decree of mandatory injunction to fulfil the conditions and stipulations in the agreement dated 22nd August, 1988 and if the defendant fail to do so, in the alternative a decree for possession may be passed in favour of the plaintiffs against the defendant for the land comprised in Khewat/Khatauni No.9/12 min, Khasra No.242/12/2 and Khasra No.13, total measuring 3-14 bighas situated in village Neri Jagyala, Tehsil Rajgarh, District Sirmaur, H.P according to Jamabandi for the year 1987-88.” The case of the defendant is that the land, in question, was shown to him and he was told 4 that this land belonged to Gulab Singh. Thereafter, sale deeds dated 11.3.1988 and 14.3.1988 were registered in favour of the defendant and he paid total consideration of Rs.1,62,000/- to Gulab Singh who is the real brother of the plaintiffs. However, when demarcation was conducted, it was revealed that the land which had been sold to the defendant was not actually the land which was shown to him and the land which he had purchased was in the nature of a ‘Dhank’ or a ‘Nala’. Thereafter, the plaintiffs agreed to give the land, in dispute, to the defendant in exchange and also agreed to return the excess amount of Rs.14,000/- and it was in this circumstance that exchange was got done. It was further pleaded that the agreement to provide water was independent of the exchange and the exchange had taken place much earlier. It was alleged that prior to the execution of the agreement, the defendant had already been delivered possession of the land comprised in Khasra Nos.242/12/2 and Khasra No.13 measuring 3.14 bighas and that he had improved the land by raising 5 construction thereupon and planting orchards on the same. It would be pertinent to mention here that since the defendant did not file written statement in time, his right to file the same was closed by the learned Trial Court on 20.11.1990 and his defence was struck off under Order 8 Rule 10, CPC. Thereafter, the defendant filed a Revision Petition in this Court which was dismissed as withdrawn in view of the law laid down by the Apex Court in Modula India Vs. Kamakshya Singh, AIR 1989 S.C 162. The learned Trial Court vide its judgment and decree dated 21.1.1994 decreed the suit of the plaintiffs and passed a decree for mandatory injunction directing the defendant to fulfil the terms and conditions of the agreement dated 22.8.1988 by lifting the water from the ‘Pervi Khad’ and ‘Giri’ river to the plaintiffs on or before 31.12.1994. Against this judgment and decree, the respondent-defendant filed an appeal and the appellants-plaintiffs filed cross-objection. The learned Lower Appellate Court dismissed the suit in its entirety. Hence the present appeal. 6 I have heard Sh.Bhupender Gupta, Senior Advocate for the appellants and Sh.Karan Singh Kanwar, counsel for respondent. Though the suit was admitted on a number of questions of law, in my view, all the questions do not arise and the only question which arises is “Whether the agreement, Ext.PW2/A is a legal and valid document?” As far as the documents produced by the defendant are concerned, except those documents which have been admitted and exhibited at the time of admission by the plaintiffs, the defendant cannot be permitted to rely upon other documents since his defence was struck off. The main argument of Sh.Bhupender Gupta, learned senior counsel for the appellants is that the document whereby the exchange was entered into between the parties is an unregistered document as the same was not properly stamped and hence not admissible in evidence. This question has to be decided against the appellants in view of the fact that the document itself clearly shows that the agreement deed was registered before the Sub 7 Registrar, Rajgarh on 22.8.1988. Therefore, this agreement is a legal document and is binding upon the parties and the parties have to abide by the same. Furthermore, the main relief claimed by the plaintiffs is in accordance with this agreement. The next question which arises is “Whether the agreement to exchange the properties and the agreement to provide water are two different agreements?” In my view, the learned Lower Appellate Court gravely erred in holding that the lands had been orally exchanged and the agreement for supply of water was separate. The learned District Judge has also gravely erred in holding that the defendant had not taken any advantage in pursuance of the impugned agreement dated 22.8.1988 and, therefore, the plaintiffs are not entitled to any relief. The only reason for doing so was that according to the learned Lower Appellate Court, Dayal Singh while appearing as PW/1 had stated that under the impugned agreement, he had to pay Rs.14,000/- to the defendant and out of the said amount, Rs.7000/- was paid two days prior to the impugned 8 agreement and the remaining after the impugned agreement vide receipt Ext.PY. According to the learned Lower Appellate Court, since there is no document on record to show if the plaintiffs had paid Rs.7000/- prior to the agreement, in question, and there is no such recital in the agreement, this fact cannot be accepted. We are here dealing with a case where the defence of the defendant was struck off. The defendant does not deny the execution of the document. When there is no recital in the document, in question, that Rs.14000/- had to be paid in terms of the agreement, how can the non- payment of Rs.7000/-, even if this fact is believed to be true, be construed to mean that the agreement is no longer binding upon the parties. Therefore, I am of the considered view that both the parties were bound by the agreement, Ext.PW2/A. In view of the above discussion, the suit of the plaintiffs has to be decreed. However, relief will have to be molded in view of the intervening circumstances. During the course of this appeal, the defendant was permitted to place on record 9 certain documents and these documents show that these documents are copy of the mutation whereby the exchange was duly entered into between the parties. It has also come on record that during the pendency of the proceedings, the defendant had raised construction of a hotel instead of a factory on the land, in question. According to the defendant, if the suit has to be decreed, he will supply 1½ inches of water to the plaintiffs and he be given reasonable time to make such arrangements but no condition be imposed that this water should be lifted from ‘Giri’ river or ‘Pervi Khad’ but it shall be the responsibility of the defendant to provide water. I also find that the agreement is very loosely worded. According to this agreement, water through 1½ inch’s diameter pipe has to be supplied by the defendants. In my view, the agreement must be read in a reasonable manner. It cannot be expected that the defendant is to provide water through 1½ inch’s pipe throughout the day or night. It has been verified that in case water is taken through 1½ inch’s pipe in one hour, 27 liters to 36 liters of water will go through the pipe. The land 10 which was exchanged is only about 3 bighas and for drinking purposes, not more than 300 to 400 liters of water is required per day. Even in a town like Shimla, water is not available for more than half an hour or 45 minutes a day. Keeping into consideration all these factors, I am of the view that relief should be molded and the defendant be directed to supply water for one hour on each day which would be sufficient to meet the requirements of the plaintiffs. I also fix the time on which supply of water is to be made from 8.00 a.m. to 9.00 a.m. everyday but this time can be mutually changed by the consent of the parties. In view of the above discussion, the appeal of the appellants-plaintiffs is allowed and a decree for mandatory injunction is passed directing the defendant to ensure that on or before 30.4.2011, he shall make arrangements for the supply of water through a 1½ inch pipe for at least 1 hour each day. The defendant is also directed to ensure that he shall arrange for lifting the water by making arrangements for the water pipes and take the water till the edge of the land of the plaintiffs and thereafter, it shall be 11 for the plaintiffs to make arrangements to take water through the rest of their land. It is made clear that the defendant can supply water from any source and even by way of tankers but the water should reach the land of the plaintiffs and in case the defendant fails to provide water to the plaintiffs in the aforesaid terms by 30.4.2011 then the agreement shall be deemed to be cancelled and the defendant shall have to return the land, in question, to the plaintiffs. The appeal is disposed of accordingly. No costs. December 27, 2010 ( Deepak Gupta ) (m) Judge