IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA NO. 399 of 2000 Date of Decision: 16th November, 2010 __________________________________________________________ Parveen Kumar & others ….Appellants. Versus Dev Pal ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1No ___________________________________________________________ For the Appellant: Mr. S.S.Mittal, Sr. Advocate with Mr Surinder Parkash Sharma, Advocate. For the Respondents: Mr. K.D. Sood, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). This appeal has been preferred by the plaintiffs against the judgment of the two Courts below decreeing the suit of the plaintiffs for injunction. The case pleaded by the plaintiffs was that the decree of permanent injunction be granted by restraining the defendant from interfering or raising any construction over the suit land measuring 13 Marlas bearing Khewat No. 217 min, Khatoni No. 384 min, Khasra No. 3419 as per copy of jamabandi for the year 1980-81 situated in village Oel, Tehsil Amb, District Una. The suit was filed on the basis of 1 Whether Reporters of Local Papers may be allowed to see the judgment?Yes 2 ownership. It was pleaded that earlier the suit land was owned and possessed by the father of the plaintiffs who expired in January, 1986 and they have now succeeded the suit land. The defendant Dev Pal is stated to have no right, title or interest in the suit land. It was pleaded that earlier the suit was filed against the father of the plaintiffs by Punjab Khadi Board, which was dismissed and the appeal of that judgment was also dismissed by holding the father of the plaintiffs to be the owner in possession of the suit land. 2. The plaintiffs pleaded that during the pendency of the suit; the defendant encroached upon the land by breaking open the locks etc. and raised some construction thereon. In these circumstances, decree of possession was also prayed for. 3. The suit was contested by the defendant on a number of grounds including maintainability. One of the grounds urged was that earlier the suit land was owned by Amar Nath, father of the plaintiffs. He died in the year 1986. In the year 1975-76, the defendant took forcible possession and raised some construction over the suit land in the nature of structure having a tin roof and some RCC construction, the possession was open and hostile to the knowledge of the plaintiffs and the defendant claimed adverse possession. The other ground urged was that during the settlement operations, abadi of the defendant and his brother was found as a fact for which Missal of Kabaj was prepared and forwarded to Naib Tehsildar (Settlement). One brother of the plaintiffs namely Rajesh Kumar represented himself to be the power of attorney of deceased Amar Nath as also the plaintiffs and entered into an agreement with the defendant whereby it was settled that a sum of ` 13,500/- would 3 be paid by the defendant for the suit land in order to avoid all disputes. ` 10,000/- was paid and ` 3,500/- was agreed to be paid at a later date when the sale deed was executed. It was also pleaded that First Information Report was lodged by the plaintiffs on 25.1.1991 at Police Station, Gagret, but the case was found to be false and the report was cancelled. 4. The trial Court settled eight issues. On the first issue with respect to the ownership of the land and issue No. 7A with respect to the grant of relief of possession, the Court held in favour of the plaintiffs a detailed consideration of the evidence on record. The defendant appealed and the learned Appellate Court held that Ext.DW1/A which was the receipt executed by this Rajesh Kumar, constituted a binding agreement to sell and accordingly dismissed the suit of the plaintiffs. 5. This appeal has been preferred by the plaintiffs on a number of grounds. It was admitted on two questions of law: 2. Whether a cosharer can bind other cosharer by taking advance for sale of joint land from a third party and other cosharers are bound by such agreement under Section 53-A of the Transfer of Property Act? 3. Whether document Ext.DW2/A is a valid agreement of sale when it does not specify the land to be transferred? 6. Adverting to the second question, Ext.DW2/A would be central to the dispute between the parties. It does not require any imagination to hold that this receipt does not purported to be an agreement to sell. It states: “Raseed Mublak das hajar 10,000/- rupya vasul paye. Dev Pal suputar Savrgiy Babu Ram Vashish Opal se babat keemap 4 jamin 12 marle jis sathan Shri Dev Pal, Dharam Pal kaa makan bna hua hai. Keemat 13,500/- 12 marle kee tatha jab hamaare naam intkaal ke baad main registry karva dunga. Yah raseed likh dee gai hai taaki sahaj rahe……….” 7. It is fundamental rule while interpreting documents that they are to be read as they are. It is not established on record as to whether this Rajesh Kumar was acting as an attorney. There is no power of attorney which has been produced on record. However, under what circumstances, the learned District Judge proceeded to grant protection of Section 53A of the Transfer of Property Act is not clear. It is against the facts on record, as appreciated by the learned trial Court. The learned Appellate Judge simply discarded the evidence of the plaintiffs. 8. Adverting to the evidence of DW12 Rajesh Kumar, all that he says that he executed sale deed Ext.DW2/A, but thereafter he resiled from his statement and was cross examined by the plaintiffs. In other words, he also does not prove the case of the defendant. The judgment of the learned Appellate Court is conjectural. The fundamental rule for interpretation of the documents is that these should and ought to be read as a whole in its true literal sense unless there is some ambiguity. I find none. The reading of the document Ext.DW2/A, which is reproduced, does not establish that the executant was acting as a co-sharer or under any colour of authority on behalf of the plaintiffs, the identity of the land or any other indication as to how he could bind the plaintiffs. Even when he appeared in evidence as a witness of the defendant he did not support their case. In these circumstances, to urge that 5 the case of the defendant is proved, the findings of the Courts below are perverse are not supported by any evidence. In these circumstances, question No. 3 is answered in favour of the appellants and against the defendant. 9. So far as question No. 2 is concerned, there is no evidence on record to justify or establish that DW12 Rajesh Kumar has acted as a co-sharer for and on behalf of the plaintiffs in negotiating any land transaction. This appeal is accordingly accepted. Judgment of the learned District Judge is quashed and set aside and decree passed by the learned trial Court is restored. Costs on parties. (Dev Darshan Sud) Judge November 16th, 2010(ms)