IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.351 of 2000. Date of decision:09.03.2011 Hari Nand … …Appellant Versus Prem Chand & Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.G.D. Verma, Senior Advocate with Mr.B.C. Verma, Advocate. For the Respondents: Respondents, M/s.Prem Chand and Brahma Nand, are present in person. Dev Darshan Sud,J. This appeal has been preferred by the successor-in-interest of the plaintiff whose suit for permanent injunction was dismissed by the Courts below. 2. The appellant-plaintiff instituted the suit, out of which the present appeal arises, on the allegations that he is the owner in possession of land comprised in Khasra No.388/369/177, measuring 0-4-12 biswas, situated at village Dadal, Pargana Sandhurath, Tehsil Arki, District Solan. It was pleaded that he had exchanged this land with defendant No.3, Brhamanand, on 19.1.1991 for a shop adjacent to this land and in addition a sum of Rs.7,000/- were paid. At 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 the time of exchange, the possession of the suit land was delivered by defendant No.3 to the plaintiff. The case pleaded was that the other defendants were threatening to interfere in the valid and lawful possession of the plaintiff. The suit was resisted by defendants No.1 and 2 on the ground that defendant No.3 was owner in possession of the land, but had sold it to defendant No.2 for a consideration of Rs.7,500/- by a sale deed dated 19.5.1995. After purchase, defendant No.2 had raised construction to extend his existing shop. The possession pleaded was that of defendant No.2. Learned trial Court settled seven issues, whereafter four more issues were framed and settled on the pleadings of the parties. The primary issues were, (1) “whether the plaintiff is owner in possession of the suit land, (2) whether he was entitled to a relief of permanent injunction and (3) whether the suit was maintainable. The additional issues framed were (4) “on the question of maintainability” and (5) “whether the agreement dated 19.1.91 Ex.PW-1/A, on the basis of which the plaintiff claimed title and possession, was bad in law.” 3. Learned trial Court, on the evidence on record, holds that the case of the plaintiff is based on the writing Ex.PW-1/A which is the basis of the exchange of land. The Court holds that although the attesting witness and scribe have been examined to prove this writing, but this document is not admissible 3 in evidence. The Court holds that this document is neither registered nor properly stamped and in these circumstances, the case of the plaintiff is disproved. The Court further holds that sale deed Ex.DW-3/A has not been challenged and therefore, the suit cannot be decreed, as prayed for. 5. In appeal, the learned appellate Court has not made any attempt to re-appreciate the evidence in the manner required by the first appellate Court and mandated by law. The Court only noted the contentions of the parties. In conclusion the Court holds that though the learned trial Court should have given separate findings on each issue as required under Order 20 Rule 5 CPC, but in view of the fact that the document Ex.PW-1/A is not admissible in evidence, it would serve no purpose if the case is remanded for this purpose. 6. During the pendency of this appeal, the plaintiff herein has also instituted applications under Order 6 Rule 17 of the Code of Civil Procedure for permission to amend the plaint being CMP No.627 of 2008 and CMP No.726 of 2002 under Order 1 Rule 10 of the code of Civil Procedure for impleadment of additional parties. This appeal was heard for quite sometime by me, but the counsel representing the respondents withdrew, whereafter actual date notice was sent to the respondents to appear in Court to defend the case. The last application was directed to be decided alongwith 4 the main appeal by order of this Court dated 3.1.2003. This appeal was admitted on the following substantial questions of law:- “1. Whether on the basis of Ext.PW-1/A, Exchange of respective properties as described in the suit has taken place and the same has wrongly been ignored by both the courts below? 2. Whether Ext.PW-1/A is not compulsorily registrable? And if contrary view is taken the same can be used for collateral purpose regarding delivery of possession with respect to property in suit by defendant No.3 in favour of deceased Sh.Chura Mani? 3. Whether Ext.PW-1/A, Writing regarding Exchange and Ext.PW-1/B whereby respondent No.3 acknowledged the receipt of Rs.7000/- contains admission regarding the claim of appellant? 4. Whether suit could not be dismissed by the Trial Court on the objections of non-joinder of necessary parties and therefore, the suit is required to be remanded by learned Additional District Judge, Solan for trial afresh? 5. Whether adverse inference was required tobe drawn against the respondent because Sh.Brahma Nand, respondent No.3, having failed to appear as own witness and also the purchaser of the property in suit, respondent No.2, smt.Roop Dei had also failed to appear as her own witness? 5 6. Whether Provisions of Section 53(A)of the Transfer of Property Act have not been invoked on behalf of the appellant, benefit thereto is available to him? 7. Whether the presumption of truth attached by both the courts below to the entries in the revenue record have amply been rebutted by the appellant on the basis of Writing Ext.PW-1/A, receipt Ext.PW-1/B and other material on record?” 7. Before adverting to these questions, for the reasons stated hereinafter, I do not find that it would be in the fitness of things to give findings on each question as it might prejudice the case of the other party. Learned counsel for the appellant relies upon three documents namely; Ex.PW-1/A, Ex.PW-1/B and Ex.PW- 1/C being writing interse between the parties, the receipt of money and Jamabandies of this property respectively, to show that in a suit for injunction what is required is that it is the possession which is to be proved and not the title. Even if the judgment of the two Courts below is accepted as being correct, learned counsel submits that the settled law under the Registration Act is that Section 49 protects possession and a party can only be dispossessed if it is established that he is not entitled to have a person possessing a superior title. 6 8. After going through the judgments of two Courts below, all that I need say is that the learned trial Court was at fault in clubbing together 4/5 issues without giving any finding. Learned counsel for the petitioner has relied upon a judgment of this Court in Om Prakash and Others vs. State of Himachal Pradesh and Others, AIR 2001 HP 18 to hold that the trial Court must give separate findings on each issue. No separate finding has been given. Learned counsel also submits that the Courts below have fallen in grave error in ignoring the fact that Section 49 of the Registration Act protects the possession and that three documents, as noticed above, have not been dealt with properly. He relies upon the decision of the Supreme Court in S.Kaladevi vs. V.R. Somasundaram and Others, (2010)5 SCC 401 to urge that unregistered sale deed can be proved in evidence and that a bare reading of Section 49 of the Registration Act ibid provides that the deed can be received in evidence in proof of collateral purposes to prove possession. This, learned counsel submits, is without prejudice to the fact that the Courts below have failed to consider the fact as to whether registration was compulsorily required or not for which purpose he has relied upon the decision of this Court in Gulab Singh and others vs. Smt.Dilbaru and another, AIR 1989 HP 23 and a Division Bench judgment of the Punjab High Court in Sardara Singh and another vs. Harbhajan Singh and others, AIR 1974 Pb 7 345. Learned counsel also submits that having taken advantage of both, the exchange and the consideration settled for the exchange, the defendants seek to take the benefit of the unjust enrichment which cannot be enforced in law under any circumstances. 9. On the question of non-joinder of necessary parties, learned counsel submits that the established law is that no party can be non-suited on the ground of non-joinder of necessary parties without an opportunity being granted and for this purpose, he has filed two applications in this Court, one under Order 1 Rule 10 for impleadment and second Order 6 Rule 17 for amendment, not only claiming impleadment of necessary parties but also for amending the suit in a manner which would bring his cause within the four corners of what he has pleaded. 10. I am not entering into the merits of what has been stated on the submissions made by the appellant herein, but I must observe that when this Court put it to the respondents-defendants, who were present in Court, as to whether they were willing to transfer this land/shop in favour of the appellant, it was stated by Brahma Nand that he would do so in case a sum of Rs.three lacs, which was the original consideration fixed, is paid to him. I do find it to be untenable as I have found no document or evidence on the record to show that this was the consideration amount which was settled. 8 11. Having given my careful and anxious thought to the case of both the parties, it is but with reluctance that I have to remand this suit to the Court of learned Sub Judge Ist Class, Arki for decision afresh in accordance with law. The two applications, being CMP Nos.726 of 2002 and 627 of 2008, are allowed subject to the condition that the appellant herein shall pay an amount of Rs.10,000/- as costs to the respondents to be shared by the respondents on the first date on which they will appear before the learned trial Court which is fixed for 30th May, 2011. The respondent Shri Prem Chand and Brahma Nand, who are present in Court, have been informed about this date. I may add that the approach of the Courts below in totally rejecting the three documents is totally illegal, without consideration of the principles of law applicable. Learned Court shall grant an opportunity to the parties to lead additional evidence on the amendment application as also on the application for impleadment as additional party and shall endeavour to dispose of the case as expeditiously as possible. This appeal is accordingly disposed of. There shall be no order as to costs. March 9, 2011 (Dev Darshan Sud) (aks) Judge.