IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 119 of 1997. Reserved on: 01.07.2008. Decided on: 04.08.2008. Shri Moti Ram and Others. … … Appellants. Versus Shri Dinesh Kumar and Others. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellants: Mr. Bhupender Gupta, Senior Advocate with Mr. Janesh Gupta, Advocate. For the Respondents: Mr. Dharamvir Sharma, Advocate. Rajiv Sharma, Judge: This regular second appeal has been preferred against the judgment and decree passed by the learned Additional District Judge, Mandi in Civil Appeal No.14 of 1989 on 30.1.1997. The brief facts necessary for the adjudication of this regular second appeal are that the appellants/plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) had filed a suit in the Court of Sub Judge Ist Class, Sundernagar for declaration with consequential relief of Whether reporters of local papers may be allowed to see the judgment? No. - 2 - possession. The suit was resisted by the respondents/defendants (hereinafter referred to as the defendants for convenient sake). The learned trial court decree the suit on 26.12.1988. The defendants preferred an appeal against the judgment and decree passed by learned Sub Judge, dated 26.12.1988 before the Additional District Judge, Mandi. The learned Additional District Judge, Mandi allowed the appeal and set aside the judgment and decree passed by the trial Court, dated 26.12.1988. This regular second appeal has been preferred by the appellants/plaintiffs against the judgment and decree dated 30.1.1997. This regular second appeal was admitted by this Court on 10.9.1997 on the following substantial questions of law:- 1. When the very execution of the Deed of Sale was assailed on account of Vendee exercising fraudulent means to obtain the said document, whether in such circumstances it was justified to find fault on the presumption of validity of the certificate of the Sub Registrar registering the said document? 2. Whether the learned Lower Appellate Court has found any grave procedural error in erroneously discarding Exhibits PA, PB and PW-3/A when no objection regarding admissibility, mode of proof or genuineness of such document was disputed? 3. Whether the learned Lower Appellate Court has taken an essentially wrong approach in not appreciating the law regarding the execution of the documents by an illiterate woman. Is not an illiterate woman comparable to the status of a parda nasin lady and the document so executed assailable on the ground of exercise of fraud, misrepresentation etc.? 4. Whether the learned Lower Appellate Court has absolutely misapplied the law presuming the due execution of the Deed of Sale on the ground that the Vendor did not assail the Deed of Sale during her life time, ignoring the objections recorded at the - 3 - time of mutation, filing Exhibit PA and PB raising protest on the ground of exercise of fraud? 5. Whether the learned lower Appellate Court has misread the material documents and some evidence and as such, the judgment and decree is vitiated. Whether the learned Lower Appellate Court has taken an erroneous and perverse view regarding locus standi of the plaintiffs-appellants to assail the deed of sale, are such findings erroneous on the fact of documentary evidence available on the record? Mr. Bhupender Gupta, learned senior counsel had strenuously argued that the judgment and decree dated 30.1.1997 passed by the learned Additional District Judge, Mandi is not sustainable in the eyes of law. He has prayed for restoration of the judgment and decree passed by the learned trial court. On the other hand, Mr. Dharamvir Sharma had supported the judgment and decree passed by the learned Additional District Judge, dated 30.1.1997. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are interconnected, they are taken up together for discussion. The plaintiffs have examined PW-1 Shri Moti Ram, PW-2 Himanshu, PW-3 Shri Govind Ram, PW-4 Shri Bhikam Ram and PW-5 Shri Dhani Ram. PW-1 has stated that no land was sold by Durgi nor any payment was made by defendants to Smt. Durgi. He further deposed that Durgi has made an application to the Tehsildar on 15.3.1983 Ex.P-A and affidavit was sworn vide Ex.P-B. Durgi had executed a registered Will on 25.3.1983 in their favour at Sundernagar. She was suffering from paralysis. He has deposed that there was no mention in the Will that he was competent to challenge the sale deed. She died on 29.6.1983. - 4 - PW-2 Shri Himanshu and PW-3 Shri Govind Ram have proved the Will executed by Durgi in favour of the plaintiff on 25.3.1983 Ex.P-C. PW-4 Bhikam had stated that he was present when Tehsildar came at 6/6.30 P.M. and Muni Lal, Himanshu and Charu were sitting with Durgi. Accordingly, Shri Muni Lal got thumb impression of Durgi on the papers when she was lying in comma and no money was paid. PW-5 Dhani Ram had supported the version of PW-4. The defendants had examined DW-1 Shyam Lal, DW-2 Shri Mohan Singh, DW-3 Shri Sita Ram, Sub Registrar, DW-5 Bhagat Ram and DW-6 Shri Muni Lal. DW-1 Shyam Lal had deposed that on 25.2.1983 sale deed was executed by Smt. Durgi and he paid Rs.5,000/- earlier andRs.2000 were paid at the time of the execution of the sale deed. DW-3 Shri Sita Ram, Tehsildar had registered the sale deed. He has deposed that he went to the House of Durgi Devi on the application of Shyam Lal for the registration of sale deed on 25.2.1983. According to him the sale deed was scribed by Petition Writer, which is Ex.D-A and thereafter it was read over to Smt. Durgi Devi by him and she admitted that Rs.5,000/- were paid earlier and Rs.2,000/- were paid in his presence. Shri Bhagat Ram DW-5 had deposed that in his presence Smt. Durgi Devi agreed to sell the land to defendants and Rs.5,000/- were paid by Shyam Lal to Durgi Devi in his presence. Muni Lal, DW-6 is the attesting witness of the sale deed and he has proved the sale deed. It is evident from the statement of Shri Sita Ram, DW-3 that Smt. Durgi Devi has executed a sale deed and she was in fit state of mind and he registered the sale deed after reading the contents of it to Smt. Durgi Devi. He has further deposed that Rs.2,000/- were paid in his presence and she admitted that she had already received Rs.5,000/- earlier. The - 5 - statement of Sita Ram has been rightly believed by the learned first appellate Court. The application allegedly made to the Tehsildar, Ex.P-A and affidavit Ex.P-B have not been proved on record in accordance with law. It has come in the evidence of PW-1 Moti Ram that Durgi Devi knew about the sale deed before 15.3.1983 and she was alive till 29.6.1983. If she knew about the sale deed and was alive till 29.6.1983, the sale deed ought to have been challenged by her by filing a civil suit. The Will Ex.P-C has been executed on 25.3.1983. The first appellate Court by correctly appreciating the evidence, oral as well as documentary, has set aside the judgment of the learned trial Court. There is no question of law much-less any substantial question of law involved in this appeal and the same is accordingly dismissed. No costs. August 04, 2008. (Rajiv Sharma) (sck). Judge.