IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No.114 of 1996. Date of decision 29.10.2008. Chaudhary Ram & Others …Appellants Versus Yash Pal & Others …Respondents Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the Appellants: Mr. Subhash Sharma, Advocate. For respondents 1(a),: Mr.H.K. Bhardwaj, Advocate 1(b) and 2 to 4. with Mr. Yogender Paul, Advocate. Dev Darshan Sud, J. (Oral) This appeal has been preferred by the successors in interest of the plaintiffs against the judgment and of the learned District Judge reversing the judgment and decree passed by the learned Sub Judge Ist Class, Una in a suit for declaration instituted by the predecessors in interest of the 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - appellants herein granting a decree declaring the plaintiffs to be joint owners in possession of the suit land to the extent of half share. The suit out of which this appeal arises was instituted for half share of land, measuring 75 Kanals 4 Marlas, namely: (i) land measuring 36 Kls. 6 Mls. bearing khewat 53, khatauni No. 63, khasra Nos. 34 (4-13), 53/1 (3-4), 55(12-1), 58(6-15), 100 (6-7), 101 (3-6); (ii) Land measuring 24 K-10 Mls, bearing khewat No. 55, khatauni No. 65 khasra Nos. 53(3- 2), 63 (4-0), 65 (2-15), 66 (8-10), 67 (2- 12) and 68 (3-11); and (iii) Land measuring 14 Kanals 8 Mls. bearing khewat No. 56, khatauni No. 66, khasra No. 54, situated in village Bharmar, Teeka Chowki Maniar, H.B. No. 1, Tehsil Bangana, District Una, as entered in the jamabandi for the year 1981-82 to the extent of ½ share with defendants 1 to 4. The learned trial Court, on the settled issues, decreed the suit holding issue No. 1, which is whether the plaintiffs and proforma defendants - 3 - are owners in possession of ½ share with the defendants, in favour of the plaintiffs. The defendants appealed and the learned District Judge partly reversed the decree holding that land measuring 16 kanals 16 marlas as described in Ex.PW- 4/A was the sole and exclusive property of the contesting defendants and the plaintiffs have no right, title or interest in this land. The decree was partly modified to this extent. This appeal was admitted on 21.6.1996 on the following substantial questions of law: 1. Whether the learned lower appellate court has correctly and legally interpreted and appreciated the evidence placed on the record? 2. Whether the evidence available on the file had been completely misappreciated by the learned lower appellate court by taking a different view than that of the learned trial Court? 3. Whether the admissions made by one Smt. Biasan Devi, one of the vendors of the land in dispute have been illegally and wrongly ignored by the learned lower appellate Court? 4. Whether the admission of DWs 1 and 2 agreeing to the effect that since the time of sale, the appellants- - 4 - plaintiffs are in possession over half share of the land and the respondents are also in possession of half share has been misconstrued by the learned lower appellate Court? The first two questions may be taken up for consideration together. The learned District Judge holds that Ex.PW-4/A being a registered document was executed by Biasan Devi, wherein she sold land comprised in Khasra No. 54, khewat No. 56, khatauni No. 66, as per jamabandi for the year 1981- 82 to Dina Nath and Karam Chand. The name of Gian Chand, father of the plaintiffs did not find mention in this deed. Learned counsel appearing for the plaintiffs has urged that the findings cannot be sustained on the evidence on record. The evidence of the plaintiffs consists of PW-1 Chaudhary Ram, PW-2 Chamel Singh, PW-3 Kamlesh Devi and PW-4 Kishan Chand, Clerk in the office of the Sub Registrar. Learned counsel has vehemently urged that the evidence of these witnesses conclusively establishes that the plaintiffs have been able to prove their case as pleaded. - 5 - Looking to this evidence, I do not find that this contention of the learned counsel can be accepted. PW-1 Chaudhary Ram only states that consideration for the sale was paid to the vendor. He does not state where, how and when this amount was paid. PW-2 and PW-3 are the vendors of a different parcels of land which has nothing to do with the suit land. PW-4 Shri Kishori Lal, Registration Clerk in the office of the Sub Registrar has proved Ex.PW-4/A, sale deed with respect to 16 kanals 16 marlas of land which is the bone of contention between the parties. A reading of this evidence does not in any manner establish that the plaintiffs have been able to establish their case that the land was purchased from defendant No. 5 Smt. Biasan Devi by Dina Nath and Karam Chand and Shri Gian Chand, who is the predecessor in interest of the appellants. There is nothing on record to establish this fact. No attempt or effort has been made by the plaintiffs to examine the marginal witnesses of Ex.PW-4/A or anybody from the office of the Sub Registrar to show that exclusion of the name of Gian Chand from the document was deliberate or an act of conspiracy on - 6 - the part of the defendants as is now being sought to be made out. Admittedly the document Ex.PW-4/A is a registered document and the plaintiffs have not produced any evidence on record to establish that the contents of the document are in fact incorrect. The primary evidence to rebut this would have been the marginal witnesses to the document and those who were present before the Sub Registrar before whom they identified the vendor and vendees and the document was registered after its contents had been explained to the executant. Ex.PW-4/A contains an endorsement signed by the Registrar that the contents of the document have been read over and explained to the parties. Learned counsel for the appellants places reliance on the decision in M.D.Gopalaiah v. Smt. Usha Priyadarshini and others, AIR 2002 Karnataka 73 to submit that Section 92 of the Indian Evidence Act, 1872 excludes oral evidence to contradict the contents of a written document. This is an established proposition of law and does not require any reiteration. All that need be said is that if a case of fraud is pleaded, evidence to negative the contents of a deed can be led. For this, a proper - 7 - foundation under Order 6 Rule 4 of the Code of Civil Procedure has to be laid. I do not find from the pleadings that any such foundation has been pleaded in the plaint. In Shri Kripa Ram and others v. Smt. Maina, 2002 (2) Shim. L.C. 213, dealing with the provisions of the Registrar Act, 1908, especially Section 60 (2), this Court held: “10. Section 60 of the Registration Act specifically provides that certificate endorsed on the document, registered by the Registrar, shall not only be admissible in evidence for the purpose of proving that document has duly been registered in the manner provided under the Act but also that the facts mentioned in the document referred to in Section 59 have taken place as mentioned therein. It is now well settled that presumption of due execution of a document arises from the endorsement of the Sub Registrar under Section 60 of the Act. As far back as in 1928 Privy Council in Sennimalai Goundan and another v. Sellappa Goundan and others, AIR 1929 Privy Council 81, interpreting the provisions of - 8 - Section 60(2) read with Section 115 of the Evidence Act, held that where a person admits execution before the Registrar after the document has been explained to him, it cannot subsequently be accepted that he was ignorant of the nature of transaction.... 11. A Division Bench of this Court Kanwarani Madna Vati and another v. Raghunath Singh and others, AIR 1976 HP 41, interpreting the provisions of Section 62 of the Registration Act held that there is a presumption of correctness of the document if its execution is admitted before the Registrar. The Division Bench in para 20 observed: “Under Section 60(2) of the Registration Act the certificate given by the registering officer shall be admissible for the purpose of proving that the document has been duly registered in the manner provided by this Act and that the facts mentioned in Section 59 have occurred as therein mentioned. Therefore, there is a presumption, which attaches to the correctness of the endorsements made on the document by the registering officer. These endorsements show the presentation of - 9 - the document personally by Smt. Madna Vati for registration. She was identified by Kr. Jowala Singh and her signatures were also obtained by the registering officer on both the endorsements, i.e., the endorsement of presentation and that of admitting the contents of the documents and the receipt of the consideration by her. In order to rebut this, it was necessary for the defendant No. 2 to have produced the Sub Registrar. She did not produce him in the witness box. Therefore, the presumption of correctness shall become conclusive.” As held by me, there is nothing on record to show that the sale deed did not in fact contain the correct version of the transaction and the identity of the parties to the deed. Learned counsel for the appellant urged that both these questions arise for consideration and this Court had ample jurisdiction to look into the findings of fact. For this purpose, he relied upon the decision of the Supreme Court in Mohd. Yunus v. Gurbux Singh, 1995 Supp (1) SCC 418, holding: “ Where there is gross misappreciation of evidence which - 10 - goes to the root of the matter, certainly the second appellate Court can exercise its jurisdiction.” He also relied upon the decision in Kulwant Kaur and others v. Gurdian Singh Mann (Dead) by LRs and others, (2001) 4 SCC 262, holding: “…..While it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say, however, that perversity itself is a substantial question worth adjudication….” I have scrutinized the evidence in detail to see if there is any perversity in the - 11 - appreciation of evidence or wrong application of the principles of law but can find none from the record. These questions are accordingly answered against the appellants. On the third question, learned counsel for the appellants submits that defendant No. 1 Smt. Biasan Devi had admitted in her written statement that Gian Chand in fact was one of the purchasers of the land. He submits that in view of this admission, there was no need for the plaintiffs to have proved this fact by evidence alluinde. Dealing with the same contention, the learned appellate Court, relying upon a decision of the Allahabad High Court in National Insurance Co. Ltd., Kanpur v. Yogendendra Nath Verma and others, AIR 1982 Allahabad 385 held: “……The averments contained in the written statement could not take the place of proof unless the evidence is produced by the owner or insurer….” This is the correct position in law. It is undisputed before me that defendant No. 5 never stepped into the witness box in support of what she had pleaded in the written statement. - 12 - Learned counsel submits that it was the duty of the defendants to have summoned her in evidence. This submission cannot be accepted. Although an opponent can be called in evidence under certain circumstances, an adverse inference should and ought to be drawn against defendant No. 5 for staying away from the witness box. The reasons are obvious. She would have been subjected to searching cross examination by the other defendants which she wanted to avoid. In Kishori Lal vs. Chunni Lal, (1909) 36 Indian Appeals 9, the Privy Council deprecated the practice of calling the other side as a witness. The Court observed:- “As to this last matter, it would appear from the judgment of the High Court that in India it is one of the artifices of a weak and somewhat paltry kind of advocacy for each litigant to cause his opponent to be summoned as a witness, with the design that each party shall be forced to produce the opponent so summoned as a witness, and thus give the counsel for each litigant the opportunity of cross-examining his own client. - 13 - It is a practice which their Lordships cannot help thinking all judicial tribunals ought to set themselves to render as abortive as it is objectionable. It ought never to be permitted in the result to embarrass judicial investigation as it has done in this instance.” This was followed by another decision by the Privy Council. In Musammat Lal Kunwar vs. Chiranji Lal (1909-1910) XXXVII Indian Appeals 1, where the Privy Council was dealing with a case of the practice prevalent of withholding a party to a suit as a witness and then gambling upon the fact that the opposite party will call him as a witness so that he could be cross-examined at a length by his counsel. The Privy Council held: “… … … … … …The plaintiff, however, was never produced as a witness to sustain his own case and so help to discharge the burden of proof that rested upon him. It is suggested that the presumption which would be drawn in this country to the detriment of a plaintiff who, under similar circumstances, failed to enter the witness-box and face the ordeal of cross-examination ought - 14 - not to be drawn in cases between natives tried in India, because of a species of advocacy tolerated by the Courts of law in that country, in which the unworthy effort of the advocate on each side is to force his opponent to produce his own client in order that he himself may have the opportunity of cross- examining that client. The result is that, should the opponent refuse to be led into this trap, the parties (the principal witnesses, who possibly could throw light on all those tangled transactions which so perplex those who have to decide these cases) are never examined at all, and the litigation goes forward through tortuous windings to its unsatisfactory and uncertain end. This case is a good example of this practice, for not only was the plaintiff not examined on his own behalf, but the defendant, Musammat Dhan Kunwar, was not examined on her own behalf either. It is a vicious practice, unworthy of a high-toned or reputable system of advocacy. It must embarrass and perplex judicial investigation, and, it is to be feared, too often enables fraud, - 15 - falsehood, or chicane to baffle justice….” Moreover, the admission made was by defendant No. 5 is against her interests. She could not make any admission on behalf of the contesting defendants. Obviously, defendant No. 5 having sold the land could plead anything as she had divested herself of the title to the land. She had no business making any admission binding the other defendants. This pleading was to be tested by cross examination which she has never faced by avoiding to appear as a witness. In this case, there is a possibility that she may be in connivance with the plaintiffs. This question is accordingly decided against the appellants. On the fourth question, all that need be said is that there is no admission made by defendants 1 and 2 which would substantiate the claim of the appellants. In fact if the evidence is considered in its totality, the plaintiffs have been unable to establish their case and - 16 - there is no admission which would specifically bind the defendants to the land comprised in Ex.PW-4/A. This question is also decided against the appellants. In the facts and circumstances of the case, I hold that there is no merit in this appeal which is accordingly dismissed. There shall be no order as to costs. October 29, 2008 (PC). (Dev Darshan Sud), J.