IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA 293 of 1998 Judgment Reserved on 22nd March, 2011 Date of Decision_19th April, 2011 __________________________________________________________ Thakur Singh & another ….Appellants. Versus Sunder Singh and others ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No ___________________________________________________________ For the Appellants: Mr.A.K. Sharma, Advocate. For the Respondent: Mr.Bhupinder Gupta, Sr.Advocate with Mr. Neeraj Gupta, Advocate. __________________________________________________________________ Dev Darshan Sud, J This is the defendants’ appeal against the judgment of the learned District Judge partly reversing the judgment and decree of the learned trial Court and granting a decree of permanent prohibitory injunction in favour of the plaintiffs/respondents. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 2. Before the learned trial Court, plaintiffs Sunder Singh and Shyam Singh instituted a suit for permanent prohibitory injunction in respect of land comprising Khata Khatauni No. 53 min/103 min Khasra No. 1023-1023/1 measuring 26.14.18 bighas situate in village Khetaru, Tehsil Jogindernagar as per the copy of jamabandi for the year 1986-87. 3. On the settled issues and more especially issue No. 1 the Court held that the plaintiffs were in possession of the suit land except Khasra No. 1023/1 measuring 8 bighas. The plaintiffs then appealed to the learned District Judge, who reversed the findings of the learned trial Court granting the decree for the entire land as prayed for. 4. The defendants are now in appeal. The appeal was admitted on two substantial questions of law:- 1. Whether possessory rights over the suit land can be claimed on the basis of the Ikrarnama executed inter-se the predecessors-in-interest of the parties if actual delivery of possession of land has taken place? 2. Whether presumption reversing the execution of a document which is more than 30 years old can be raised under the provisions of Indian Evidence Act, 1872 and what was the effect of such presumption in the given facts and circumstances? Question Nos. 1 and 2 5. Both these questions are taken up together for discussion as they are interlinked. 3 6. On the first question learned counsel urges that there is an Ikrarnama (agreement) Ext.D2 which provides in clear and uncertain terms that a portion of land Khasra No. 1023 has been sold to the defendants by the plaintiffs for valuable consideration. Learned counsel submits that this document has been rightly interpreted by the learned trial Court but the learned District Judge, while considering this facet, discarded the document on the ground that date on which it was executed has been filled in with different ink. He submits that scribe of the document DW4 Kirpal Chand clearly states, which statement has remained unrebutted, that this agreement was in fact executed between the parties. The document therefore cannot be discarded and even if it is taken that the date is written with different ink it would not make any difference to what has been written therein. Ext.D2 states in unambiguous terms that land measuring 8 bighas of Khasra No. 1023 has been sold to the persons named therein, signed by the parties and witnessed. I do not find that this document can be discarded outright or that it can be termed as one which has been forged/manufactured for the purpose of this litigation. Merely because the date is with different ink, does not in any manner take from the veracity of what is agreed upon in this document and its legal consequences. However, the difficulty would be as to what particular portion of Khasra No. 1023 has been handed over to the defendants/their predecessors-in-interest. Learned counsel has laid stress on the evidence of defence witnesses namely DW1 Duni Chand, DW2 Chingu Ram, DW3 Krishan Singh, DW4 4 Khub Singh Patwari and DW6 Pyare Lal Patwari to state that particular portion stands identified in tatima Ext.D1. 7. Adverting to the evidence of these persons and more especially tatima, I do not find that the evidence on record is satisfactory to show as to whether possession of that particular portion was delivered to the appellants herein. Both the revenue officers, DW4 Khub Singh Patwari and DW6 Pyare Lal Patwari state in evidence that these documents have been prepared by them without associating any party and they cannot say as to whether possession is that of the plaintiffs or any other person. 8. Learned counsel appearing for the respondents-plaintiffs refers to Khasra Girdawari Ext.PB and submits that area of Khasra No. 1023 is 13-8-5 and 13-6-13 of Khasra No. 1023/1 and submits that it was all the more necessary for the defendants to prove the particular portion of land on which they were in possession. On the evidence on record, I hold that it is not established as to at which portion of the land, the defendants are in possession. This finding does not negate the rights agreed to vide Ext.D2 or the fact of possession, but only the exact portion on which they are in possession has been left obscure. 9. In these circumstances, this appeal is dismissed. It will be open to the defendants to establish their rights independently on Ext.D2. April , 2011 (Dev Darshan Sud), ms Judge 5