IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.27 of 2003. Date of decision: 18.08.2008. Prem Chand …Appellant Versus Devi Singh …Respondent. Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Ms.Ruma Kaushik, and Ms.Sunita Sharma, Advocates. For the Respondent: Mr.Rakesh Jaswal, Advocate. Dev Darshan Sud,J. This is the plaintiff’s appeal against the judgment of the two Courts below declining a decree of perpetual injunction against the defendant restraining him from interfering in the possession of the plaintiff on Khasra No.1033 (new), measuring 0- 05-29 hectares, situated in Mauza Dalan, Tehsil Kumarsain, District Shimla. The plaintiff pleaded that he is the owner in possession of the suit land which has been given to the plaintiff by the defendant to whom it was allotted in family partition by his father Mehar Chand and in exchange for the same, the plaintiff 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 gave the land comprised in Khasra No.26 min(old), 147(new), measuring 0-03-47 hectares in the year 1984. The plaintiff alleged that during the settlement operation, possession of Khasra No.147(new) has been entered in the name of defendant but the possession of Khasra No.1033 in Mauja Dalan, which is the suit land, has not been entered in the name of the plaintiff. Taking undue advantage of these entries, the defendant is threatening to dispossess the plaintiff from the suit land. The trial Court on the settled issue, namely issue No.1, “as to whether the suit land is in possession of the plaintiff since 1984 after exchange with the land of defendant? OPP”, held that the evidence on record does not establish this fact. The Court also concluded that no exchange of lands of the parties took place nor was it proved on record and therefore, the plaintiff has no cause of action in instituting the suit. This was decided on issue No.6. In appeal, the learned District Judge re- considered the entire evidence and concluded that the plaintiff is not entitled to a decree for injunction as there was no exchange proved on the record of the case. This appeal was admitted on three substantial questions of law, namely: 3 “1. Whether learned court below has mis-read the documents Ex.P-4/A and Ex.P-4/B and thus arrived on wrong conclusion, not warranted in the eyes of law? 2. Whether learned Court below has applied wrong law regarding revenue entries, moreover, when the entries stood rebutted by oral as well as documentary evidence? 3. Whether learned Court below was wrong in denying the decree of perpetual injunction to plaintiff? Question No.1: On question No.1, learned counsel appearing for the appellant has drawn my attention to Ex.PW-4/A and Ex.PW-4/B. Learned counsel vehemently urged that this report and statement conclusively proved that it is the plaintiff who is in possession of the suit land and that the learned Courts below were not correct in discarding this evidence. These two documents were proved on the record by PW-4. He is the Kanoongo, Kotgarh. In examination-in-chief, he states that Ex.PW-4/A is the report prepared by him depicts the situation as it exists on the spot and Ex.PW-4/B is the statement of the defendant acknowledging the correctness of this fact situation. The mode of proof of Ex.PW-4/A and Ex.PW-4/B has been objected to by the learned counsel 4 at the time when evidence was being recorded on the ground that original record has not been produced by the witness. In his cross-examination this witness admits that he had prepared this on the orders of the Tehsildar and that he has not brought the original record. This witness also states that the father of the plaintiff was a Patwari. Taking the totality of the evidence on record, that is the fact that no exchange took place nor there is any conclusive evidence on this issue, the entries in the revenue record especially the Misalhaquiat and Khasra Girdavari (Crop inspection) remained un-rebutted; the Courts below have held that it is the defendant who has been recorded in cultivating possession in the revenue record. On application moved by the plaintiff before the Assistant Collector Ist Grade, Kumarsain for correction of revenue record, the Assistant Collector Ist Grade, Kumarsain vide Ex.PXX, certified copy of the order dated 30.3.2002, concluded that the defendant had not agreed for exchange of his land with the plaintiff and is in possession of the suit land. The Courts hold that the submission of the plaintiff has not been corroborated by any oral or documentary evidence and that Ex.PW-4/A and Ex.PW-4/B have not been proved in accordance with law. The Courts hold that if there is an exchange / transfer of land or property of the value of more than Rs.100/- and above, 5 a registered instrument is required and no such instrument has been placed on the record. In this view of the matter, the suit of the plaintiff was dismissed. Learned counsel appearing for the plaintiff- appellant has laid stress on the two documents Ex.PW- 4/A and Ex.PW-4/B to urge that both these documents, i.e. the report and the statement made by the defendant, conclusively establish the case of the plaintiff. Both the documents should have been proved in accordance with law by summoning the original record. Ex.RA, which is produced pursuant to an application under Order 41 Rule 27 before the learned District Judge, only shows that an interim order has been passed by the Collector for proceedings instituted by the defendant stating therein that the order passed by the Assistant Collector Ist Grade was behind his back and was not in accordance with law. On reading both Ex.PW-4/A and Ex.PW-4/B jointly, I do not find that the Courts below have erred in holding that both the documents as being of no value, more especially when the original record was available and could have been produced and documents proved in accordance with law. In this view of the matter, I hold that there was no misreading of both these documents by the Courts below. This question is decided against the appellant. 6 Questions No.2 and 3: Question Nos.2 and 3 are taken up together. The submission of the learned counsel is that the revenue entries have not been properly incorporated and have been rebutted by the oral evidence. Third question, which is related with second question, is that the Courts below have acted contrary to law in not granting relief of decree of perpetual injunction in favour of the plaintiff. On going through the documents, I do not find that the evidence of the plaintiff in any manner rebuts the revenue record. In-fact, both the Courts below by a detailed judgment have considered that the oral evidence is insufficient to rebut the revenue record and that there is no documentary evidence on the record brought by the plaintiff. As rightly held by the learned District Judge, there is no document evidencing the exchange which forms the foundation of the case of the plaintiff. Both these questions are answered against the appellant. This appeal is accordingly dismissed. There shall be no order as to costs. August 18, 2008. (Dev Darshan Sud) (aks) Judge.