IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 405/1998 Reserved on: 26.2.2009 Decided on: 17.3. 2009 Bodhu. …Appellant. Versus Rami. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellant : Mr. Dushyant Dadwal, Advocate. For the Respondent : Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 31.5.1997 passed by the learned Additional District Judge, Kullu in Civil Appeal No. 9/1997. Brief facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) instituted a suit in the Court of learned Sub Judge 1st Class, Kullu for declaration with consequential relief of injunction. It was alleged by the plaintiff that the land comprised under khasra No. 1317 measuring 2-12-0 bighas, khata khatauni No.912/1414 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 situated in Phati and Kothi Jagatsukh, Tehsil and District Kullu was recorded in the ownership and possession of the plaintiff. The plaintiff had raised over the suit land an orchard. He entered into an agreement in the year 1990 with one Sh. Ast Bahadur for raising orchard over the suit land. He could not raise the orchard. It is further stated by the plaintiff that in the month of December, 1990, appellant-defendant (hereinafter referred to as ‘the defendant’ for convenience sake) represented to him that he would raise orchard over the suit land with his own funds and he would take half the price of the fruit crop from the orchard for a period of ten years to be reckoned from the 10th year of the plantation of the orchard with effect from the year 2000. On 10.12.1990, the plaintiff was brought to Kullu by the defendant and he was asked to put his signatures on some documents on the pretext that these documents pertain to agreement and the contents of these documents were not read over to him. Thereafter he was taken to the office of the Sub Registrar, Kullu. Subsequently he came to know that the defendant instead of entering into agreement got the sale deed of the suit land executed and registered from the plaintiff by taking advantage of his poverty and illness. He started interfering in possession of the plaintiff over the suit land. He also secured attestation of mutation of the suit land on the basis of the sale deed in his favour vide mutation No. 4107 dated 13.6.1991. The defendant paid to him Rs. 5,000/- for planting apple trees over the suit land. The suit was contested by the defendant. He emphatically denied the averments contained in the plaint. His case was that the plaintiff actually sold the suit land for consideration of Rs. 30,000/-. The plaintiff filed the replication. The trial court decreed the suit on 7.1.1997. The defendant preferred an appeal before the Additional District Judge, Kullu. The same was dismissed by him on 31.5.1997. This Regular Second 3 Appeal has been directed against the judgment and decree dated 31.5.1997. It was admitted on the following substantial questions of law: 1. “Whether both the courts below were right in decreeing the suit of the respondent/plaintiff when the ingredients of fraud, undue influence and mis-representation were neither pleaded nor proved? 2. Whether both the courts below were right in ignoring the presumption of truth which attached to the registration of the sale deed and the subsequent mutation thereto, the presumption being one of law and having not been rebutted on the record? 3. Whether both the courts below were right in decreeing the suit of the plaintiff/respondent without ordering the refund of the money to the appellant/defendant and allow the respondent/plaintiff to unjustly and unduly enriching himself?” Mr. Dushyant Dadwal, Advocate has strenuously argued that his client has purchased the land on the basis of the sale deed dated 10.12.1990 and the mutation was attested in his favour on 13.6.1991. According to him presumption of truth is attached to the registered sale deed. He then contended that his client had paid a sum of Rs. 30,000/- to the plaintiff. Mr. Rajnish K. Lal, Advocate has supported the judgments and decrees passed by both the courts below. His case is that the defendant has played fraud on his client and in fact his client had never agreed to part with the land. He denied the payment of Rs. 30,000/-. I have heard the learned counsel for the parties and perused the record carefully. 4 Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. The sale deed Ex.DA is dated 10.12.1990. The plaintiff has placed on record five years average price of the land vide Ex.PW-5/A and Ex.PW- 5/B. Ex.PW-5/A shows that per bigha rate of the orchard prevalent in the area with effect from 16.6.1985 to 15.6.1990 was Rs. 30,078/-. Similarly, as per Ex.PW-5/B, per bigha rate of the orchard was Rs. 32,705/- with effect from 16.6.1989 to 15.6.1990. Accordingly, the consideration of the suit land was to be more than Rs. 60,000/- because the land is 2-12-0 bighas. PW-3 Ringjin has also purchased the land measuring 1 bigha 1 biswa vide sale deed Ex.PW-4/A for consideration of Rs. 48,500/- in the year 1985. This land was in the vicinity of the suit land. PW-1 has categorically stated that he never intended to sell the suit land for a meager consideration to the defendant. He was only paid a sum of Rs. 5,000/- to raise orchard over the suit land. He has denied that he has sold the suit land to the defendant through registered sale deed Ex.DA for consideration of Rs. 30,000/-. DW-1 has admitted in his cross-examination that before one week of the execution of the registered sale deed Ex.DA he had a talk about the sale of the suit land with the plaintiff at Jagatsukh Bazar. But at that time none was present there and he paid Rs. 100/- as earnest money to the plaintiff at that time but no document in writing was executed. He admitted that he brought the revenue papers qua the suit land from the Patwari Halqua along with five years average certificate. According to him, he did not pay the sale consideration on the date of execution of the sale deed Ex.DA because the entire sale consideration was paid to the plaintiff at his house on the eve of execution of the sale deed Ex.DA in the presence of 5 Sh. Bhadur Singh, Ex-President, Gram Panchayat Jagatsukh. However, no receipt was obtained by him in token of receipt of sale consideration from the plaintiff. Bhadur Singh though was cited as a witness but was never examined. He was a important witness. Similarly, DW-2 Sh. Chhering Ram, Document Writer has deposed that no payment was made to the plaintiff in his presence. PW-4 Sh. Miter Bhushan, Advocate has also deposed that no payment of sale consideration was made to the defendant by the plaintiff in his presence. The defendant has failed to proved by way of any tangible evidence from where he obtained the sale consideration of Rs. 30,000/-. He has admitted that he is having his saving bank account in State Bank of India, Manali as well as in the Post Office. In case he had drawn the money from the State Bank of India or from the Post Office, Manali he could easily place this document on record. In case he has paid the money as claimed by him, he ought to have obtained the receipt. Accordingly, both the courts below after going through the pleadings and evidence of the parties have rightly come to a just conclusion that the sale deed was the outcome of fraud and misrepresentation. The document i.e. Ex.DA and the mutation attested on the basis of sale deed are illegal and invalid. Accordingly, there is no merit in the Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 17.3. 2009 (Rajiv Sharma ), J. *awasthi*