IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 482 of 2009 with Cross Objections No.537 of 2009. Decided on: 29.11.2011. _____________________________________________ 1. RSA No.482 of 2009. 1. Narender Singh, 2. Surinder Kumar. (both sons of Shri Anant Ram, residents of village Up Mohal Gandhi Nagar, Mauza Bajuri, Tehsil and District Hamirpur, Himachal Pradesh. … Appellants-Defendants. Versus Prabhu Ram son of Shri Lohka Ram, resident of village Up Mohal Gandhi Nagar, Mauza Bajuri, Tehsil and District Hamirpur, Himachal Pradesh. … Respondent-Plaintiff. 2. Cross-Objections No.537 of 2009. 1. Narender Singh, 2. Surinder Kumar. (both sons of Shri Anant Ram, residents of village Up Mohal Gandhi Nagar, Mauza Bajuri, Tehsil and District Hamirpur, Himachal Pradesh. … Appellants-Defendants. Versus Prabhu Ram son of Shri Lohka Ram, resident of village Up Mohal Gandhi Nagar, Mauza Bajuri, Tehsil and District Hamirpur, Himachal Pradesh. … Plaintiff-Respondent-Cross Objector. ____________________________________________________ Regular Second Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 8th June, 2009 passed by the learned District Judge Hamirpur in Civil Appeal No.180 of 2007. - 2 - Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellants : Mr. Ramakant Sharma, Advocate. For the Respondent : Mr. K.D. Sood, Advocate for the respondent and Cross-Objector. Justice Rajiv Sharma, Judge (Oral): This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Hamirpur in Civil Appeal No.180 of 2007, dated 8th June, 2009. 2. Material facts necessary for adjudication of this regular second appeal are that the respondent/plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) has filed a suit against the appellants/defendants (hereinafter referred to as “the defendants” for convenience sake) for declaration and permanent prohibitory injunction. The suit was contested by the defendants by filing written statement. The learned Civil Judge (Junior Division), Court No. III, Hamirpur framed the issues on 17th April, 2000. The learned Civil Judge (Junior Division) dismissed the suit on 2nd February, 2007. 3. The plaintiff preferred an appeal before learned District Judge, Hamirpur. He partly allowed the appeal and the judgment and decree of the learned Civil Judge (Junior Division) 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 3 - was modified to the extent that the defendants were restrained from interfering in the possession of the suit land/property by virtue of possession being exclusively with the plaintiff. Hence this regular second appeal by the defendants. 4. The regular second appeal was admitted on the following substantial questions of law on 7th December, 2009:- 1. Whether impugned judgment and decree is the result of complete misreading, mis-interpretation as well as mis-appreciation of Ex.PW-1/A, dated 2nd June, 1995, Exts.P-1 and P-2, copies of jamabandis for the years 1989-90 and 1994-95? 2. Whether impugned judgment and decree is the result of non-consideration of provisions of Section 49 of the Registration Act? 5. The plaintiff has also filed cross-objections. The same were admitted on the following question of law on 7th December, 2009:- 1. Whether the construction placed by the courts below for ignoring Ext.PW-1/A is based on misreading and misconstruction of Section 17 of the Registration Act and the authorities, which have vitiated the findings? 6. I have heard learned counsel for the parties and gone through the pleadings as well as the record carefully. 7. Since the dispute raised in the regular second appeal and the cross-objections as well as the substantial questions of law in both the cases are interlinked and interconnected, they are - 4 - taken up together for consideration to avoid repetition of discussion of evidence. 8. Plaintiff has appeared as PW-2. According to him the suit land was owned and possessed by the parties, but the defendant has relinquished his share in it vide agreement, Ex.PW-1/A dated 2nd June, 1995. PW-1, Pradeep Kumar has proved on record the agreement Ex.PW-1/A, which was scribed by his father, Bakshi Ram. PW-3 has deposed that the agreement was written between the parties in Tehsil office on 12th June, 1995. PW-4 has also deposed about the preparation of agreement. PW-5, Jagan Nath Sharma is the Registration Clerk in Tehsil Office, Hamirpur. He has proved on record the sale deed, Ex.PW-5/A. 9. According to Narinder Singh, DW-1, defendants were owners in possession of the suit land. DW-2, Ralu Ram has testified that he is also son of Lohka Ram and that all of them lived jointly till 1966. DW-3, Devi Singh has deposed that the suit land was in possession of the parties and the plaintiff has not given any land in exchange, as agreed to the defendants. 10. It appears from Ex.PW-5/A that father of defendants, Shri Anant Ram has sold some joint land vide sale deed dated 31st March, 1976. However, Anant Ram has not handed over the share to Prabhu Ram. It is in these circumstances, agreement Ex.PW- 1/A, dated 2nd June, 1995 was executed. - 5 - 11. The defendants have argued that the agreement Ex. PW-1/A was a fake document. 12. PW-1 Pradeep Kumar has proved the agreement Ex.PW-1/A. PW-2 Prabhu Ram, plaintiff has also supported this document. PW-3 Gian Chand is one of the attesting witnesses of the agreement. The contents of the same were read over and explained to the executors, who signed it and Namberdar, Satish Kumar was also present. This witness has reiterated in cross- examination that it was written at 10.00/11.00 a.m. and Relu Ram and Anant Ram were present throughout. DW-1, Narinder Singh has admitted that plaintiff was in possession of suit land/Palli and agreement Ex.PW-1/A was signed by his father. DW-2, Relu Ram has also supported the execution of agreement Ex.PW-1/A to the extent that some compromise was entered into between the parties. It is recited in Ex.PW-1/A that the possession of the share of Anant Ram had been delivered in favour of Prabbu Ram. The agreement Ex.PW-1/A was not a family arrangement. It was a single transaction between two brothers. Anant Ram had sold his land and that of Prabhu Ram, who was having a share in it and so, Anant Ram owed payment of the share of Prabhu Ram. It is in these circumstances that agreement Ex.PW-1/A was entered into between the parties. 13. Since the value of the suit property is more than rupees one hundred, the agreement was required to be registered. - 6 - The learned first appellate court has rightly come to the conclusion that since the document Ex.PW-1/A was not compulsorily registered, share of Anant Ram could not be transferred in favour of Prabhu Ram. However, since the possession has been handed over to the plaintiff as per agreement Ex.PW-1/A, this document could be read into for the purpose of possession. There is no merit in the contention of Mr. K.D. Sood, learned counsel for the plaintiff that agreement Ex.PW-1/A was not required to be registered. Since the possession of the suit land was with the plaintiff, the defendants have rightly been restrained from interfering with possession of the plaintiff over suit land. 14. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this regular second appeal as well as the cross-objections and the same are dismissed, so also the pending application(s), if any. No costs. (Justice Rajiv Sharma), Judge. November 29, 2011. (sck).