IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.215/1997 Reserved on: 6.5.2008 Decided on:30.5.2008 Jaisi Ram and others …Appellants. Versus Sita Ram and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellants : Mr. Anuj Nag, Advocate. For the respondents : Mr. Ajay Sharma, Advocate for respondent No.1. Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 6.6.1997 in civil appeal No.69-K/XIII/96 passed by the learned District Judge, Kangra at Dharamshala. The brief facts necessary for the adjudication of this appeal are that the respondents-plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) filed a suit for declaration to the following effect: “Suit for grant of decree for declaration to the effect that the plaintiff is the owner in possession of the land bearing khata No. 17 min, khatoni No.34 min, khasra No. 398 area measuring 0-05-71 hectares Mal RS. 0.86 paisa (hereinafter referred to be the suit 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 land), situated at Mohal Ghehr, Tehsil Dharamshala, District Kangra, as entered in the Jamabandi for the years 1985-86 on the basis of an agreement of exchange dated 29.3.1977 of the land bearing khata No. 14, Khatoni No. 27, khasra No. 598/54, area measuring 0-02-16 hectares, Mal Rs. situated at Mohal Ghehr, Tehsil Dharamshala, District Kangra as entered in the Jamabandi for the years 1985-86 and is entitled to remain as owner in possession of the land in field No. 398 in future also. The entries showing the defendants as owners in possession of the suit land are wrong, ineffective and deserves to be corrected by grant of decree for declaration and be corrected. The defendants after the exchange have nothing to do with the ownership and possession of the suit land. The defendants have no right to claim any dominion over the land in field No. 398 and have no right to interfere with the ownership and possession of suit land in any manner whatsoever to dispossess the plaintiff and to raise any construction thereon. The defendants deserve to be restrained by grant of decree for permanent prohibitory injunction and be restrained. In case any change is made in the existing state of things, then the same position deserves to be restored by grant of decree for mandatory injunction and be restrained. The suit was resisted by the defendant by filing a detailed written statement. However, respondent-defendant Sh. Sita Ram (hereinafter referred to as the defendant for convenience sake) has denied that he had authorized his brother Sh. Fauza Ram to execute the exchange deed on 29.3.1977. The learned trial court decreed 3 the suit filed by the plaintiffs on 8.4.1996. The defendant filed an appeal before the learned District Judge, Kangra at Dharamshala against the judgment and decree dated 8.4.1996. The learned District Judge accepted the appeal on 6.6.1997 and the suit of the plaintiffs qua the share of Sh. Sita Ram regarding the land comprised in Khasra No.398 measuring 0-02-85 hectares was dismissed. The Regular Second Appeal has been filed against the judgment and decree dated 6.6.1997 passed by the learned District Judge, Kangra at Dharamshala. The Regular Second Appeal was admitted on the following substantial questions of laws: 1. Whether the exchange of land has to be effected by way of registered document only? 2. Whether any report which has been made by the Patwari in his Rapat Rojnamcha is admissible in evidence? 3. Whether the learned first appellate court below was justified in totally ignoring the oral as well as documentary evidence of the plaintiffs which goes into the root of the case? Mr. Anuj Nag, Advocate had strenuously argued that the judgment and decree passed by the learned District Judge is not sustainable in the eyes of law. Mr. Ajay Sharma, Advocate had supported the judgment and decree passed by the learned District Judge. I have heard the learned counsel for the parties and perused the record meticulously. 4 Since all the questions of law are inter-connected, therefore, the same can be conveniently discussed together. Mr. Anuj Nag, Advocate had strenuously argued that on the basis of the exchange deed dated 29.3.1977; the trial court has come to the just conclusion that the parties were bound by it. However, Mr. Ajay Sharma, Advocate had argued to the contrary that his client i.e. defendant Sita Ram had never authorized his brother Sh. Fauza Ram for the exchange of land by way of exchange deed dated 29.3.1977. Sh. Sita Ram had filed a separate written statement. He has denied categorically that he has ever authorized his brother to sign the exchange deed dated 29.3.1977. Sh. Fauza Ram has appeared as DW-1 and has admitted that Sita Ram had never given him any power of attorney and Sh. Sita Ram is in possession of the suit land. In his cross-examination he has also reiterated the stand taken in the examination-in-chief. If Sh. Sita Ram had never authorized Fauza Ram to enter into an agreement with the plaintiffs, he is not bound by the exchange deed Ex.PW-5/A. The learned trial court had over looked this very vital piece of evidence. The learned District Judge has correctly appreciated the evidence led by the parties, more particularly, in the manner in which Ex.PW-5/A dated 29.3.1977 was reduced into writing. If Sh. Fauza Ram was not authorized as noticed above to exchange the land on behalf of Sh. Sita Ram, the subsequent revenue entries could not be effected to. Whether Sh. Fauza Ram was authorized to exchange the land with the plaintiffs and to execute any document or not on 5 behalf of Sh. Sita Ram is a question of fact. The findings recorded by the leaned District Judge to the effect that Sh. Fauza Ram was not authorized to execute any document on behalf of Sh. Sita Ram are upheld. There is no question of law much less substantial question of law involved in this appeal. In view of the observations made hereinabove, there is no merit in the appeal and the same is dismissed. There shall be no order as to costs. (Rajiv Sharma), Judge May 30, 2008 *Awasthi*