IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 287 of 1999 Judgment reserved on : 4.6.2009 Date of decision: June 22, 2009. Nand Lal …Appellant. Versus Devi Roop & anr. ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellant : Mr. Tarun Behl, Advocate vice Ms.Asha Vaid, Advocate. For the respondents : Mr. Ashwani K. Sharma, Advocate for respondent No.1. Kuldip Singh , Judge This appeal has been directed against the judgment, decree dated 19.4.1999 passed by the District Judge, Mandi in Civil Appeal No. 55 of 1994 reversing the judgment, decree dated 28.4.1994 passed by Sub Judge 1st Class, Court No.II, Mandi in Civil Suit No.12 of 1992. 2. The facts, in brief, are that one Drompti had filed suit for declaration and injunction against appellant that she was owner in possession of four rooms constructed on land comprised in khewat khatauni No. 360/431 khasra No. 1616 measuring 201-25 sq. meters situated in Mauja Mangwain, Mandi Town, Tehsil and District Mandi. The appellant requested her to keep his luggage in her house as he had been 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 living in the neighbourhood from where he wanted to shift. She even agreed to gift one room to appellant, who however, played fraud and got executed the sale deed dated 26.12.1990 which is illegal and void. She alleged that she had never sold suit land to anyone including appellant nor she received any consideration. She came to know about the sale deed on 15.1.1992 when appellant proclaimed himself to be the owner of the whole house and vacant land. In these circumstances, suit was filed by Drompti Devi for declaring the sale deed as void and restraining appellant from interfering in her possession on the suit property. The appellant contested the suit and took preliminary objections of estoppel and lack of enforceable cause of action. It was pleaded that Drompti Devi had sold about 61 sq. meters of suit land to him through registered sale deed for consideration of Rs.9500/- and thereafter, he had constructed a house on the land. The possession of the suit land was delivered to appellant after receiving the sale consideration. 3. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff has no enforceable cause of action to file the present suit? OPD. 2. Whether the present suit is not legally competent as such the same is liable to be dismissed? OPD. 3. Whether the plaintiff is estopped by her own act and conduct to file the present suit and as such the suit is not maintainable? OPD. 4. Whether the plaintiff has executed a valid sale deed No.1233 dated 26.12.1990 in favour of the defendant as alleged? OPP. 5. If issue No. IV is proved, whether the alleged sale deed is result of fraud, deception as alleged ? OPP. 6. Relief. 3 The issues No.1, 4 and 5 were answered in affirmative and issues No.2, 3 in negative and suit was dismissed by the Sub Judge, Court No.II, Mandi on 28.4.1994. The decision dated 28.4.1994 was assailed in appeal. Drompti Devi died during the pendency of the first appeal and her legal representatives were brought on record. The District Judge on 19.4.1999 accepted the appeal and set-aside the judgment, decree dated 28.4.1994, hence second appeal, which has been admitted on following substantial question of law:- “Whether the lower appellate Court has not properly construed and interpreted the evidence led by the parties particularly the sale deed Ex.PW-1/A”? 4. Heard and perused the record. On behalf of the appellant, it has been submitted that the lower Appellate Court has not properly construed and interpreted the evidence more particularly sale deed Ex.PW- 1/A. It has been submitted that the lower Appellate Court has erred in decreeing the suit. Mr. Ashwani Sharma, Advocate appearing on behalf of respondent No.1 has supported the impugned judgment, decree. 5. In the written statement, it has been pleaded that the plaintiff had received the sale consideration from appellant and delivered possession of the suit land to appellant and thereafter sale deed was executed and registered on 26.12.1990. It has also been pleaded that appellant after purchasing the suit land had constructed his house on the suit land. Ex.PW-1/A is the sale deed dated 22.12.1990 which was registered on 26.12.1990. DW-1 Bhagi Rath Sharma, Document Writer has stated that he read over the contents of sale deed Ex.PW-1/A to plaintiff, who in token of correctness of the contents put her thumb mark. The marginal witnesses had also put their signatures. In cross-examination, he 4 has stated that he had not written the names of witnesses. The third witness is Parma Nand, who came later on. 6. DW-2 Smt. Pawna Sharma, Junior Assistant, office of Deputy Commissioner, Mandi has stated that Ex.PW-1/A is the copy of original sale deed, which bears endorsement Ex.PW-2/A and Ex.PW-2/B. The endorsement is written by Sub-Registrar, Yog Raj. DW-3 Nand Lal has stated that deal was struck with the plaintiff for purchasing one and half biswa land for Rs.9500/-. He paid Rs.9500/- to plaintiff in her house. The plaintiff handed over possession of the land, thereafter they approached the petition writer for preparing sale deed. The sale deed was prepared and they went to the Tehsildar for registration but he was not in the office. They again went to the Tehsildar after four days for registration of the sale deed. In cross-examination, he has stated that he does not remember after how many days of the deal the money was paid. The sale deed was executed on the day the deal was stuck. He paid the amount 2/3 days after the deal. He has stated that plaintiff and her husband were quite aged. No receipt of the amount paid was taken. 7. DW-4 Tek Chand has stated that Rs.9500/- were paid to plaintiff in her house. The sale deed Ex.PW-1/A was prepared. In cross- examination, he has stated that on that date Rs.9500/- were paid to plaintiff. Thereafter, they went to petition writer. He has also stated that they went to Tehsildar but he was not there and after four days they again went to Tehsildar. He has not stated that Tehsildar had read over the contents of the sale deed to the plaintiff. DW-3 Nand Lal has also not stated that Tehsildar /Sub-Registrar had read over the contents of sale deed to the plaintiff. 8. There are material contradictions in the case set up by the appellant. It is not the case of the appellant that before execution of sale 5 deed Ex.PW-1/A some agreement was entered into between the parties. The case put forward by appellant is that Rs.9500/- were paid to Drompti Devi and on the same date sale deed Ex.PW-1/A was executed. But in his statement as DW-3 appellant has stated that the amount was paid 2 / 3 days after the deal was stuck. DW-3 has stated that sale deed was executed on the date the deal was stuck. There is no consistency in the stand of the appellant. 9. The endorsement on sale deed Ex.PW-1/A has not been proved. DW-2 Pawna Sharma has not stated that endorsement on the sale deed Ex.PW-1/A was read over by Sub Registrar to Drompti Devi. The Sub Registrar has not been examined nor any explanation has been given why he was not examined. It has come on record that Drompti Devi was issueless, she and her husband Babu Ram were quite old when sale deed was allegedly executed. The learned District has rightly appreciated the material on record. The learned counsel for the appellant has failed to point out that District Judge has not properly construed and interpreted the evidence more particularly sale deed Ex.PW-1/A. There is no perversity in the impugned judgment, decree. No case for interference has been made out. The substantial question of law referred above is decided against the appellant. 10. No other point was urged. 11. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), Judge. June 22, 2009.(GR)