IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.569 of 2000 Decided on: 27.10.2010 Ms.Chanchal Kaur …..Appellant VERSUS Sh.Sujan Singh Jatt …..Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? No For the appellant: Mr.Bhupinder Gupta, Sr.Advocate with Mr.Janesh Gupta, Advocate. For the respondent: Ms.Vidushi Sharma, Advocate. Deepak Gupta,Judge (Oral) This Regular Second Appeal is directed against the judgment and decree dated 1.9.2000 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No.156-P/XIII of 1999 whereby the appeal filed by the present appellant (hereinafter referred to as the ‘plaintiff’) was dismissed and judgment and decree dated …2… 11.10.1999 passed by the Sub Judge, 1st Class (II), Palampur was upheld. 2. Briefly stated the facts of the case are that the plaintiff filed a civil suit for declaration and permanent injunction against the respondent (hereinafter referred to as the ‘defendant’). In this suit, it was alleged that the plaintiff’s father vide agreement dated 25.12.1960, executed by the defendant, purchased 1/3rd share of the house consisting of one room in the Abadi and whole share in the land owned by the defendant for a consideration of Rs.1000/-. The defendant had allegedly received a sum of Rs.400/- at the time of execution of the agreement and the balance amount was to be paid within two years. It was alleged that the balance amount was paid on 19.1.1963. 3. It would be pertinent to mention here that the plaintiff’s father and the defendant were real brothers. According to the plaintiff, her father had been put in possession of the land by the defendant. Her father died on 27.6.1995 and thereafter, her mother and she had been in …3… possession of the land. They requested the defendant to execute the sale deed but no sale deed was executed. It was further alleged that since they are in possession of the property for the last 35 years, they have become owners of the same by way of adverse possession. 4. The defendant contested the suit and pleaded that the plaintiff was only a co-sharer in the suit property but is not in possession of the house and the land. He denied the execution of the agreement or the receipt of any consideration. The case set up by him was that when he (defendant) initiated partition proceedings, the plaintiff filed the present suit with the intention of delaying the same. Both the Courts below have come to the conclusion that the agreement, in question, and the receipt have not been proved in accordance with law. The learned Courts below also come to the conclusion that the transfer of the property could not have been made without a registered deed. They have also come to the conclusion that the plaintiff has miserably failed to prove that she has become owner by way of adverse possession. …4… Hence the Regular Second Appeal which was admitted on the following questions of law:- (i) Whether the Lower Appellate Court has wrongly rejected the application under Order 41 Rule 27 of the Code of Civil Procedure filed by the plaintiff/appellant? Are not the reasons recorded in the order rejecting such application based on wrong assumption of fact which cannot be supported from the record, thereby vitiating the judgment and decree? (ii) Whether the writing dated 25.12.1960 Ext.PW2/A (Mark ‘B’) being a document of more than thirty years, had the presumption as envisaged under Section 90 of the Evidence Act? Have both the Courts below wrongly rejected such documentary evidence from consideration, thereby materially affecting the decision on merits of the case? (iii) When Ext.PW-2/A (Mark–B) evidenced the payment of the consideration amount for the sale of the share of the defendant/ respondent in favour of late Shri …5… Ram Singh, predecessor-in-interest of the plaintiff/appellant, was not the sale complete as envisaged under Section 54 of the Transfer of Property Act? (iv) Whether both the Court below have wrongly invoked the provisions of Section 17 and 49 of the Registration Act holding the document dated 25.12.1960 inadmissible for want of registration? Have both the Courts below gone wrong in rejecting such material evidence on wrong assumption of law, when at the relevant time the area where the property is situated was in Punjab where the Transfer of Property Act was not in force? (v) Whether both the Courts below have wrongly rejected the claim of the plaintiff/appellant on the issue of adverse possession on the assumption that the possession of the plaintiff/appellant is in the capacity of co-owner? Are not such findings illegal, wrong, erroneous and perverse as the predecessor-in-interest of the plaintiff/appellant and the plaintiff/ appellant were sticking their claim …6… of exclusive title qua the share of the defendant/ respondent from the year 1960 under a document which was held to be invalid for want of Registration? Has not the plaintiff/appellant perfected the title of adverse possession under such invalid document from the very inception of execution of such document? (vii) Whether the presumption of truth as to the revenue records produced by both the parties stood rebutted on account of the respective stands taken and proved during the course of the trial? Are not the findings rendered to the contrary relying on such document erroneous and illegal? 5. As far as question No.1 is concerned, the learned Lower Appellate Court rejected the application made by the plaintiff for leading additional evidence vide order dated 1.9.2000. This application was filed after arguments were heard and when the Court had virtually dictated the judgment. However, since the judgment had not been announced, the learned Lower Appellate …7… Court considered the allegations made in the application which was not supported by any affidavit. The learned Lower Appellate Court rightly held that these documents were available right from the very beginning and though the case remained pending before the learned Trial Court for four years and before the learned Appellate Court for almost one year, these documents were filed only when the appeal was fixed for pronouncing the order and, therefore, the application was rightly rejected. Even otherwise, I find that the documents sought to be placed on record have no relevance to the dispute in hand because the relationship between the parties is not denied by party. This answers question No.1. 6. As far as questions No.2 and 3 are concerned, I am of the view that these documents have rightly been rejected by the learned Courts below. In fact, document, Mark-B has not been proved in accordance with law. The attesting witness PW/2 Sujan Singh has clearly stated that this document was not executed in his presence by the defendant and it is not known whether the …8… defendant had signed the same. This witness who was produced by the plaintiff did not support the case of the plaintiff and denied that Rs.400/- was given to the defendant by his brother Ram Singh. Therefore, this document has not at all been proved and cannot be relied upon. These questions are answered against the plaintiff. 7. As far as question No.4 is concerned, both the Courts below have come to the conclusion that the document related to property is of the value of more than Rs.100/- and, therefore, was required to be stamped and registered. Hence the documents have not been proved. Even otherwise, I am of the opinion that this document has not been proved in accordance with law. Question No.4 is also answered against the plaintiff. 8. As far as question No.5 is concerned, suffice to say that the plaintiff being a co-owner could not claim to be in adverse possession of the suit property. Here plaintiff was only a co-owner and she could not oust the other co-owners. This question is also decided against the plaintiff. …9… 9. Question No.7 does not arise at all and has wrongly been framed. In view of the above discussion, I find no merit in the appeal which is accordingly rejected. No order as to costs. October 27, 2010 ( Deepak Gupta ) (m) Judge