IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 366/1996 and RSA No. 17/2007 Reserved on:2.12.2008 Decided on:22.12.2008 RSA No. 366/1996: Vinod Kumar. …Appellant. Versus Sohan Lal and another. …Respondents. RSA No. 17/2007: Sohan Lal. …Appellant. Versus Vinod Kumar and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.No (RSA No. 366/1996): For the Appellant : Mr. Bhupender Gupta, Senior Advocate with Mr. Lovnesh Kanwar, Advocate. For the Respondents : Mr. Ramakant Sharma, Advocate for respondent No.1. (RSA No. 17/2007): For the Appellant : Mr. Ramakant Sharma, Advocate. For the Respondents : Bhupender Gupta, Senior Advocate with Mr. Lovnesh Kanwar, Advocate for respondent No.1. 1 Whether the reporters of Local Papers may be allowed to see the judgment? no 2 Rajiv Sharma, J. The learned counsel appearing on behalf of the parties in both the Regular Second Appeals have jointly submitted that the outcome of RSA No.17/2007 titled Sohan Lal versus Vinod Kumar and another has bearing on the outcome of RSA No. 366/1996. Consequently, RSA No. 17/2007 was taken up for hearing at the instance of the learned counsel appearing on behalf of the parties. RSA No. 17/2007: 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) filed a civil suit in the court of learned Sub Judge 1st Class, Hamirpur for declaration and for permanent injunction. The suit land is comprised in khata No. 52, khatauni No. 57, Khasra No. 129 measuring 12 kanals 11 marlas as per jamabandi for the year 1982- 83 situated in Tikka and Tappa Bajuri, Tehsil and District Hamirpur, Himachal Pradesh. According to the plaintiff, defendant Bansi Lal had executed sale deed qua the suit land in favour of the plaintiff for consideration of Rs. 11,000/- on 29.2.1988. He has further pleaded that he had no knowledge that Bansi Lal mischievously and clandestinely executed an agreement dated 5.11.1984 in favour of Sohan Lal, appellant- defendant (hereinafter referred to as ‘the defendant’ for convenience sake). It was further averred that defendant Sohan Lal was not ordinary resident of Himachal Pradesh nor he fell under the definition of Himachal Pradesh Tenancy and Land Reforms Act, therefore, the agreement dated 5.11.1984 was illegal, null and void. It was further pleaded that defendant Sohan Lal had filed a suit for specific performance of agreement dated 5.11.1984. The suit was decreed by the trial court on 30.8.1990. Bansi 3 Lal filed an appeal before the learned District Judge, Hamirpur and the same was dismissed on 12.9.1996. Defendant Bansi Lal and Sohan Lal had filed separate written statements. Defendant Sohan Lal had claimed himself to be ordinary resident of Himachal Pradesh and according to him he was agriculturist under the Himachal Pradesh Tenancy and Land Reforms Act. The trial court decreed the suit on 2.1.1998. Defendant Sohan Lal preferred an appeal before the Presiding Judge, Fast Track Court, Hamirpur. The same was dismissed by the learned Presiding Judge, Fast Track Court on 22.9.2006. This Regular Second Appeal has been filed by defendant Sohan Lal against the judgment and decree dated 22.9.2006. The Regular Second Appeal was admitted on the following substantial questions of law: 1. “Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as well as mis-appreciation of the provisions of section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972? 2. Whether the impugned judgment and decree is the result of complete misreading as well as mis- appreciation of the provisions of section 10 of the Code of Civil Procedure? 3. Whether the impugned judgment and decree is the result of complete misconstruction of the provisions of section 114 (g) of the Evidence Act for drawing an adverse inference for his non-appearance more particularly when the appellant had appeared through his attorney being ailing person? 4. Whether the learned courts below are right in granting a relief not claimed by the plaintiff nor there being any pleadings to that effect?” 4 Mr. Ramakant Sharma, Advocate has strenuously argued that the judgments and decrees passed by both the courts below are not sustainable. Mr. Bhupender Gupta, Senior Advocate appearing on behalf of respondent No.1 has supported the judgments and decrees passed by both the learned courts below. I have heard the learned counsel for the parties and have also perused the record minutely. Since all these questions are inter-connected as such to avoid the repetition of discussion of evidence, the same are being taken up together. The appeal was directed to be listed along with RSA No.366/1996 by this Court on 15.5.2007. The plaintiff Vinod Kumar had purchased the suit land vide sale deed dated 29.2.1988. The short controversy involved in the present appeal is whether appellant-defendant Sohan Lal was an agriculturist and thereby competent to purchase the suit land or not either at the time of agreement to sell or at the time of execution of sale deed. Defendant Sohan Lal has not appeared as a witness. His General Power of attorney Sh. Majalsi Ram has appeared as a witness. Sh. Bidhi Chand, UDC from the office of Superintending Engineer Electricity Board, Hamirpur has proved on record the address of Sohan Lal as contained in his service record. PW-2 Sh. Ajit Singh has proved the address of Sohan Lal in the office report as Village and Post Office Hariana, Tehsil and District Hoshiarpur (Punjab). DW-1 Majalsi Ram has admitted in his cross- examination that Sohan Lal is a resident of Punjab and has no land in District Hamirpur. Defendant Sohan Lal has claimed to be an agriculturist on the basis of will made in his favour by one Sh. Sadhu Ram. The will 5 was neither produced by the defendant nor proved on record. The will was registered with Sub Registrar, Bhoranj on 11.4.1989. He had also applied to the competent authority as per application Ex.PY and PZ seeking permission to purchase the land which was not granted to him. If he was an agriculturist on the basis of will, he need not to have applied at all seeking permission from the State Government. Accordingly, Sohan Lal could not buy the land in the year 1984 on the basis of agreement dated 5.11.1984. The learned courts below have rightly come to a conclusion that since Sohan Lal was not agriculturist, he could not purchase the land in the State of Himachal Pradesh. Both the courts below have taken into consideration the oral as well as documentary evidence produced on record by the parties. However, it is clarified that the first appellate court has erred in law by drawing adverse inference for non-appearance of Sohan Lal as a witness. Even the statement of DW-1 Majalsi does not substantiate the plea of defendant that he was an agriculturist. In view of the aforesaid reasoning, there is no force in the Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. RSA No. 366/1996: Since the RSA No.17/2007 against the judgment and decree dated 22.9.2006 passed by the Presiding Officer/Additional District Judge, Fast Tract Court has been dismissed, the RSA No. 366/1996 has become infructuous and the same is dismissed having become infructuous. No costs. 22.12.2008 (Rajiv Sharma ), J. *awasthi*