IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 285 of 1996 Date of Decision : 19.3.2008 Kushal Singh …Appellant. Versus: Amar Singh & Others …Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. Ramakant Sharma, Advocate For the respondents. Mr. Bimal Gupta, Advocate. Sanjay Karol, J (Oral). The present appeal was admitted on the following substantial questions of law:- “1) Whether the impugned judgment and decree is the result of complete misreading, misappreciation as well as misinterpretation of documents Ext.PW-2/1 to Ext.PW-2/4, that is, receipts? 2) Whether the appellant had been successful in rebutting the presumption attached to the revenue entries especially when revenue entries were not got incorporated by the appellant as per the agreement between the appellant and predecessor-in-interest of respondents No.1 and 2 late Shri Basti Ram? 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 3) Whether the Courts below have rightly rejected the application of the appellant for sending the documents to the Handwriting Expert for comparison? 4) Whether the courts below are right in not drawing an inference against respondents No. 3 & 4 for non-producing the alleged registered sale deed having been executed in their favour by late Shri Basti Ram on 5th November, 1990? 5) Whether the impugned judgment and decree is the result of complete misreading as well as misappreciation of the statement of PW-2 and statements of DWs-1 to DW-7?” Plaintiff filed a suit for declaration and injunction that he is in possession of the land comprising khasra Nos. 349 and 595 measuring 10 biswas and 6 biswas respectively, total 16 biswas situate in village Patti Kashlog, Mauza Ludhiana, Tehsil Renukaji, District Sirmaur, H.P. (hereinafter referred to as the ‘suit property’). About 15½ years prior to the filing of the suit, plaintiff was inducted as a tenant by Shri Basti Ram, defendant No.1 at a yearly rental of Rs.5/- who also issued rent receipts Ext.PW-2/1 to PW-2/4 from the year 1974-78 upto the year 1989-90. The defendant also agreed to sell the land to the plaintiff for a sum of Rs.1500/- and for executing the sale deed, stamp papers were also purchased. However, defendant No.1 sold the land to defendants No. 2 & 3 for a sum of Rs.1500/- and mutation No. 1903 reflecting the sale was also attested on 8.11.1990. In the suit, the plaintiff assailed the same. In the written statement, the defendants came up with the plea that sometime in the year 1987, the possession of 3 the land was delivered to the plaintiff by way of an oral mortgage for a sum of Rs.500/- and the same was redeemed in June, 1990 when the amount was paid and the possession taken back from the plaintiff by defendant No.1. Thereafter, defendant No.1 cultivated the land for some time and then sold the same to defendants No.2 & 3 on 5.11.1990. The trial Court framed the following issues:- “1. Whether plaintiff was inducted as tenant on the suit land by defendant No.1 as alleged and is now in possession of the same? If so, to what effect? ………….OPP 2. Whether the defendant No.1 mortgaged the suit land as IMANTI RAHAN with the plaintiff about four years back and got the same redeemed in June, 1990? If so, its effect? …OPD 3. Whether defendant No.1 rightly sold the suit land to defendants No.2 and 3? …OPD. 4. Relief.” Rent receipts Ext.PW-2/1 to Ext.PW-2/3 allegedly bears the signatures of defendant No.1 and the last of the rent receipt i.e. Ext.PW-2/4 bears the thumb impression of defendant No.1. Relying upon the evidence led by the parties, the trial Court disbelieved the plea of the plaintiff and held that the rent receipts Ext.PW-2/1 to Ext.PW-2/4 were not issued by defendant No.1. Plaintiff was in possession of the land only as a mortgagee which stood redeemed and the sale was validly effected by defendant No.1 in favour of the other defendants. 4 Plaintiff’s Civil Suit No. 151/1 of 1990 titled as Kushal Singh v. Basti Ram & Others, was dismissed by the Senior Sub Judge, Sirmaur at Nahan vide its judgment and decree dated 29.4.1993 which was assailed by the plaintiff by way of Civil Appeal No. 37-N/13 of 1993 titled as Kushal Singh v. Amar Singh and others before the Addl. District Judge, Nahan, H.P. After considering the material on record, the first Appellate Court upheld the findings of facts and came to the conclusion that the plea set up by the plaintiff was false and concocted. The Court found the testimonies of the plaintiff’s witnesses to be unnatural and unreliable and dismissed the appeal in terms of its judgment and decree dated 19.6.1996. With the enactment of H. P. Tenancy and Land Reforms Act, 1973 (hereinafter referred to as the ‘Act’), there was no need for the plaintiff to have purchased the land from defendant No.1 as by virtue of the provisions of the Act, the plaintiff as tenant would have automatically become owner of the land. It is the plaintiff’s own case that he was inducted as a tenant after 1973. Therefore, the Courts correctly found the plaintiff’s plea to be highly improbable Further, except for the self serving statement of the plaintiff, there was nothing on record to prove the fact that there was an oral agreement of tenancy between the parties. Even the revenue records do not corroborate the plea of tenancy. In 5 fact, the plaintiff’s application Ext.PW-1/A, seeking correction of the revenue record showing the defendant’s status as owner was abandoned and not pursued by him. The statements of the plaintiff’s witnesses are contradictory. As per the plaintiff, the tenancy was created by way of an oral agreement when except for the plaintiff and defendant No.1 none was present, whereas as per PW-2, oral tenancy was created in his presence. The plaintiff’s witness Shri Surinder Dutt (DW-6) Patwari in fact has gone to support the defendant’s case. According to him, plaintiff never approached him for correction of the revenue entries during his period of posting between the years 1982 & 1986. Similarly, Shri Jai Singh (DW-7) Pradhan of the Panchayat has corroborated the version of the defendant that the plaintiff was in possession of the land only for a few years as a mortgagee. I have heard the learned counsel for the parties and also perused the record. It has come on record that defendant No.1 is an illiterate and a poor person and cannot write. This is quite evident from the Sale Deed Ext.DW-1/A executed between defendant No.1 and defendants No.2 & 3. The plaintiff has failed to prove the fact that he was tenant in the suit premises. Had the plaintiff been inducted tenant by virtue of an oral agreement, there was no need for the plaintiff to have purchased the land from the defendant for a 6 consideration of Rs.1500/- as he would have become tenant by virtue of the provisions of the Act. The Court below, after relying upon the evidence on record has correctly arrived at its conclusion that as on the date of filing of the suit, the plaintiff was neither in possession nor inducted as tenant in the suit premises. The defendant No.1 who had mortgaged the suit property for a brief period had redeemed the same and taken back the possession from the plaintiff and only thereafter sold the same to defendants No.1 & 2. The revenue record establishes the fact that defendant No.1 as owner has been in possession of the suit land which stands sold to defendants No.2 & 3. The plaintiff has not been able to rebut the presumption of truth attached with the revenue entries. On the plaintiff’s application for sending the documents to the hand writing expert for comparison, the first Appellate Court held as under:- “Even before this Court, an application was moved by the plaintiff/appellant to send the admitted signatures of Basti Ram for comparison with the signatures on the receipts Ext.PW-2/1 to Ext.PW-2/3. However, no effort ever made by the plaintiff/appellant to prove that the sale deed produced by him bears the signatures of Basti Ram. Even if it is taken that the Sale Deed dated 8.7.1983 contains signatures of one Basti Ram but these signatures appear to have been written by a free-hand by a well educated person whereas the signatures given on receipts Ext.PW-2/1 7 to Ext.PW-2/3 appear to have been written by a person who appears to be a person knowing only how to put signature. On all these receipts, the signatures have been done in a manner as if the Executant found it very difficult to write the name Basti Ram. For the comparison of signatures on the sale deed dated 8.7.83 with the signature on Ext.PW-2/1 to Ext.PW- 2/3, there is no need to send them to any Expert for comparison. Even a layman can point out differences between these signatures. 12. In the year 1985, one more receipt is alleged to have been executed by Basti Ram as is evident from the statement of PW-2, Amar Singh. This receipt is Ext.PW-2/4 and on this receipt, Basti Ram had put his thumb mark. The receipts Ext.PW-2/1 to Ext.PW-2/3 are for the period from 1974 to 1978. While proving the receipts, PW-2 Amar Singh has stated that on Ext.PW-2/4, Basti Ram put his thumb mark because according to Basti Ram, he was not able to see properly and, therefore, he would only thumb mark the receipt. The evidence adduced by Amar Singh suggests that the eye-sight of Basti Ram started deteriorating day by day. However, when the Sale Deed dated 8.7.83 is taken into consideration, it can be safely said that his hand writing had improved and he could easily sign even the receipt Ext.PW-2/4.” I am in agreement with the findings returned by the first Appellate Court. It has come on record that defendant No.1 is an illiterate person. I have myself examined the sale deed Ext.DW-1/A executed between defendant No.1 and defendants No.2 & 3. The same has not been signed and only bears the 8 thumb impression of defendant No.1. In this view of the matter, no fault can be found with the same. In my view, the Courts below have correctly appreciated and interpreted the rent receipts, not to have been executed by defendant No.1. The Courts below have correctly appreciated the entire material on record while arriving at its conclusion. There is no error or perversity in the same. The questions of law are answered accordingly and the appeal is accordingly dismissed. March 19, 2008. (Sanjay Karol) (rana) Judge.