IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 451/1998 Reserved on:24.4.2009 Decided on:5.5.2009 Jagdish. …Appellant. Versus Dina Nath and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.no For the appellant : Mr. Vinod Gupta, Advocate vice Mr. Rajesh Mandhotra, Advocate. For the Respondents : Mr. Anup Rattan, Advocate vice Mr. Ravi Bakshi, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 16.6.1998 passed by the learned Additional District Judge, Mandi in civil appeal No. 100/87. Brief facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for permanent prohibitory and mandatory injunction against the appellant-defendant (hereinafter referred to as ‘the defendant’ for convenience sake). The case of the plaintiff is that he is non-occupancy tenant of the land comprised under Khewat 1 Whether the reporters of Local Papers may be allowed to see the judgment? no 2 Khatauni No. 147min/399, Khasra No. 1382/1349 min measuring 0-7-11 bighas situated in village Passal/6, Illaqua Bhanghal, Tehsil Jogindernagar, District Mandi, Himachal Pradesh. The plaintiff alleged that he purchased this land from Smt. Charaju for a sum of Rs. 500/- in year 1968 and after purchasing it, he installed a saw-mill and as such he has become owner in possession of the suit property, however, the defendant started interfering in possession of the plaintiff over the suit land on 20.2.1980. The suit was contested by the defendant and written statement was filed. The learned trial court decreed the suit on 18.8.1987. The defendant preferred an appeal before the learned Additional District Judge, Mandi. He dismissed the appeal on 16.5.1998. This Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether the learned lower appellate court has erred in mis-reading a document as sale deed and not an agreement to sell? 2. Whether such document can be construed as conveying any title or interest in immovable property for want of registration? 3. Whether the courts below have erred in taking into evidence document, which was legally inadmissible? 4. Whether the learned lower appellate court has misread the documentary evidence? 5. Whether the suit for injunction can be decreed in favour of person, who is out of possession? Mr. Vinod Gupta, Advocate has strenuously argued that both the courts below have misread and misconstrued the oral as well as documentary evidence led by the parties. According to him, the defendant has proved his possession over Khasra No. 1382/1349 measuring 1-7-11 bighas. He also contended that the learned courts below have not correctly appreciated Ex. DA and Ex. DB proved on record by DW-1 Ram Dass. 3 Mr. Anup Rattan, Advocate has supported the judgments and decrees passed by both the learned courts below. I have heard the learned counsel for the parties and perused the record carefully. The agreement Ex.PW-4/A is dated 24.6.1968. The plaintiff had agreed to purchase the land measuring 0-5-0 bigha out of nautor grant of Smt. Charaju for Rs. 500/-. PW-1 Dina Nath has deposed that he has purchased the land from Smt. Charaju for Rs. 500/-. He had taken the possession of the land and installed saw-mill. PW-2 Surjit and PW-3 Bal Krishan have supported the possession of the plaintiff over the suit land. He has placed on record copy of jamabandi for the year 1974-75 Ex.PA and 1978-79. The plaintiff has been recorded in possession as non- occupancy tenant. The description of the suit land had been recorded as “Gair-Mumkin Aara Machine”. Mr. Vinod Gupta has strongly relied upon the statement of DW-1 Ram Dass. The defendant had filed an application for demarcation of the suit land on 20.2.1986. The same was allowed on 20.2.1986 itself by the Sub Judge. DW-1 Ram Dass carried out the demarcation on 2.3.1986 and prepared report Ex.DA and field map Ex.DB. In his cross-examination Ram Dass has deposed that he had not carried out the measurement of the entire suit land of the plaintiff. It is apparent that the demarcation has not been carried out as per the existing instructions. He had commenced measurement from North-Eastern point of Khasra No. 1344. The suit land and Khasra No. 1344 abutted the National Highway. He has not reported that North-Eastern end of Khasra No. 1344 had been admitted as correct by the parties. Both the courts below have rightly rejected the report (Ex. DA) and field map (Ex. DB) prepared by DW-1 Ram Dass. 4 The agreement Ex.PW-4/A was scribed by PW-4 Sh. J.C. Kaushal, Advocate. It was witnessed by S/Sh. Singh Ram and Dharam Dutt. The defendant in fact had admitted the ownership of the plaintiff on land measuring 0-5-0 bighas on Khasra No. 1382/1349 as per the written statement. In the jamabandis, as noticed above, the plaintiff has been recorded in possession of the suit land. He has installed a saw-mill over the suit land. DW-2 Raghubir Singh has taken stand contrary to the written statement when he appeared as a witness. He in fact had shown ignorance of the sale of land by his mother. Both the learned courts below have correctly appreciated and construed the oral as well as documentary evidence led by the parties and the judgments and decrees passed by the courts below need not be interfered by this court. In view of the aforesaid reasoning there is no merit in the Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 5.5. 2009 (Rajiv Sharma ), J. *awasthi*