IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.46 of 1996. Date of decision: 25.11.2008. Chamaru & Another …Appellants. Versus Piaru & Others …Defendants. Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellants: Mr.K.D. Sood, Advocate. For the Respondents:Mr.Bhupender Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. Dev Darshan Sud,J. This is the plaintiff’s appeal against the judgment of the two Courts below dismissing the suit of the appellant-plaintiff praying for a decree of declaration with consequential relief of injunction and in the alternative for possession by way of specific performance of the contract as pleaded. The plaintiff approached the trial Court on the allegations that he was owner in possession of land measuring 8-10-0 Bighas comprised in Khasra Nos.9, 38, 318,475 and 552, Khata Khatauni No.666/1509 to the extent of half share i.e. 4-5-0 Bighas, as per copy of the Jamabandi for the year 1978-79, situated in Phati 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 Jana, Kothi Naggar, Tehsil and District Kullu, H.P. Uttmi was the wife of one Shri Bhadru and from that marriage, defendant No.1 Piaru Ram was born to her. On the death of Bhadru, Uttmi married the plaintiff Nathu. At that time defendant No.1 was about two years old. He was brought to live in the matrimonial home of Nathu. The plaintiff pleaded that he brought up defendant No.1 as his own son and later got him married. Cases under Sections 454 and 380 of the Indian Penal Code were registered against defendant No.1 Piaru Ram in the year 1988 and the plaintiff turned him out of his house, where-after he started living separately. Uttimi died and the plaintiff was left alone. The plaintiff pleads that taking undue advantage of his illiteracy, defendant No.1 mis- represented to him that he should transfer the property which the plaintiff inherited from Bhadru, the previous husband of Uttmi, and on this pretext he was brought to Kullu by defendant No.1 on 11.7.1990. It is alleged that some papers were got executed from the plaintiff, who did not intend to enter into the transaction as detailed and written in the document but he thought that he was only transferring some other property. The plaintiff pleads that on 12.7.1990 he was shocked to learn that defendant No.1 started proclaiming that he was the owner of the suit property and found that the defendant had got the sale deed Ex.DW-7/A executed by fraud and mis-representation. The pleading was that 3 defendant No.1 Piaru in connivance with defendant No.2 Shetu had got the sale deed executed for a purported consideration of Rs.21,000/-. The suit was contested by the defendants who denied all the allegations made therein and alleged the transaction to be genuine. The learned trial Court settled nine issues. The crucial issue being issue No.3, “as to whether the sale deed dated 11.7.1990 (Ex.DW-7/A) was the outcome of fraud as pleaded?”. The second issue was, “in case if the sale deed is not the outcome of fraud and is without consideration as to whether the plaintiff is entitled to the enforcement of agreement to sell dated 12.7.1990?”. These issues including the issue, “as to whether the plaintiff is owner in possession of the suit land?” were decided by the trial Court on the common evidence led by the parties. The plaintiff appeared as witness in support of his case stating that he had turned out defendant No.1 Piaru from the house because of his involvement in criminal cases and this supports the case as pleaded by him. These allegations were denied by the defendants. The learned trial Court, on consideration of the evidence, held that the sale deed Ex.D1 was executed by the plaintiff without any fraud or pressure and that the execution of this instrument was admitted before the Sub Registrar. The learned trial Court holds:- 4 “... … … … … … … … While appearing as PW1 plaintiff Nathu vendor admitted to have executed this sale deed and to have also appeared before the Sub Registrar. The marginal witnesses of the aforesaid sale deed are Jindu and Gumat Ram. The execution of the sale deed not only stands proved by the admission of the plaintiff vender in his cross-examination to have put his thumb impression on the sale deed and to have appeared before the Sub- registrar, he has also admitted the presence of the attesting witnesses Jindu Ram and Gumat Ram. He had also admitted that the aforesaid sale pertained to 4-5 bighas of land in suit. His this statement carries weight as DW1 Ashok Kumar Maherba, Notary has proved the execution of affidavit Ex.D-2 that plaintiff Nathu Ram appeared before him for getting the mutation of the suit property sanctioned. … … … … … … …” The suit of the plaintiff was accordingly dismissed. The findings on these issues were challenged before the learned Additional District Judge, Kullu. The learned Court holds that PW-5 Chhering Ram, Document Writer, supported the case of the defendants stating that sale deed Ex.D1 was scribed by him and read over to the plaintiff in the presence of the marginal witnesses and the plaintiff had fixed his thumb impression on the same after admitting its 5 contents to be true and correct. Thereafter, the witnesses put their respective signatures on Ex.D1. The learned appellate Court holds that Ex.D2 was an affidavit duly notarized and sworn by the plaintiff accepting the sale and authorizing the defendants for having the mutation attested. This was supported from the evidence of DW-1, Shri Ashok Marwaha, Notary Public, Kullu. Learned Additional District Judge also relies upon the judgment passed by the learned Additional Chief Judicial Magistrate, Kullu, on 29.4.1993 in private complaint instituted by the plaintiff against defendant Piaru Ram and S/Shri Gumat Ram, Jindu Ram and Chhering Ram, who were the attesting witnesses etc. under Sections 109, 120-B, 464 and 420 of the Indian Penal Code, with respect to the same transaction alleging that Ex.D1 was outcome of the fraud. All the accused were acquitted. The appeal was dismissed. The alternate relief based on the purported agreement to sell dated 12.7.1990 was dismissed. This appeal was admitted on the following substantial questions of law:- “1. Whether the basic document of title the sale deeds Ext.D1 and D7 have been misread and misconstrued and had conferred a valid title on the defendants? 2. Whether on a proper construction of the sale deed dated 11.7.90, it was established that Nathu had 6 executed the same on his own free will for consideration and thereafter a valid delivery of possession to show completion of the transaction? 3. Whether it was established on the basis of record that there was valid deed of resale deed 12.7.1990 in favour of Nathu by Piaru? 4. Whether the sale deed dated 11.7.90 was a result of fraud and mis-representation and was void on the basis of the evidence adduced? Questions No.1, 2 and 4: All these questions are taken up for discussion together. In order to determine these questions, the evidence of the parties has to be reconsidered. I do not find on re-appreciation of the entire evidence on the record that any fraud has been practiced upon the plaintiff as pleaded. In-fact, I concur with the findings of both the Courts below holding that the case of the plaintiff has not been established by the evidence on the record and as held by the learned trial Court that even the cross- examination of the plaintiff establishes this fact. Further the document Ex.D1 is a registered document carrying presumption of truth attached to it as provided under Section 60(2) of the Indian Registration Act. The plaintiff has not been able to rebut the 7 presumption of truth so attached to this registered instrument. (See: Shri Kripa Ram and others vs. Smt.Maina, 2002(2) Shim.L.C. 213). I do not find from the record that any other conclusion can be arrived at even if I have to substitute my own interpretation after rejecting the appreciation of the evidence by both the Courts below, though this jurisdiction is not open to me unless perversity of conclusion of fact or appreciation of evidence is established which is not the case. These questions are, therefore, answered against the appellant. Question No.3: All that need be said on this question is that both the learned Courts below have concurrently held that there was no valid agreement to sell. Even otherwise it does not stand to reason that the plaintiff should first sell land on 11th July, 1990 and thereafter immediately seek to re-purchase it. This question is, therefore, answered against the appellant. There is no merit in this appeal which is accordingly dismissed. There shall be no order as to costs. November 25, 2008. (Dev Darshan Sud) (aks) Judge.