IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.612 of 2000. Date of Decision: 26.10.2010. Duni Chand ..Appellant Versus Smt.Darshna Devi and another ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the Appellant(s): Mr.Anand Sharma, Advocate. For the Respondent(s): Mr.Romesh Verma, counsel for R-1. Mr.Sunil Chaudhary, counsel for R-2. Deepak Gupta, J.(Oral) This Regular Second Appeal is directed against the judgment and decree of the learned District Judge, Chamba, H.P. passed in Civil Appeal No. 9 of 2000 dated 18.9.2000 whereby he dismissed the appeal filed by the appellant (hereinafter referred to as the plaintiff) and upheld the judgment and decree passed by Sub Judge, Ist Class, Dalhousie, in Civil Suit No.2 of 1996 dated 30.7.1999 dismissing the suit of the plaintiff. The brief facts of the case are that the plaintiff Duni Chand claimed to be in possession of the suit land. According to him, he was a tenant on the suit property and had in fact been granted tenancy by the mother of - 2 - defendant No.1 sometime in the year 1980. Further case of the plaintiff was that an oral agreement was entered into between him and defendant No.1 whereby defendant No.1 had agreed to sell the property in question to him for a total consideration of Rs.25,000/-. This agreement is alleged to have been made some time in the year 1988. The plaintiff therefore sought specific performance of the oral agreement entered into between the parties and expressed his willingness to pay the balance amount of Rs.10,000/-. It is alleged that the plaintiff continues to be in possession of the suit land. The stand of the defendant No.1 was that the plaintiff was not a tenant under Smt.Maya Devi, mother of defendant No.1. It was denied that any oral agreement of sale was entered into between the parties. According to defendant No.1 Darshna Devi she had mortgaged the land in question with defendant No.2 Harbans Lal who is none other but the son of the plaintiff. According to her, it was defendant No.2 who was in possession of the suit land as a mortgagee. Defendant No.2 did not file written statement but supported the case of his father in the witness box. - 3 - On the basis of the pleadings of the parties, the following issues were framed: “1.Whether the plaintiff was the tenant under the mother of defendant No.1, namely, Smt.Maya Devi as alleged?...OPP. 2.Whether the defendant No.1 agreed to sell khasra No.622, 626 & 322 vide oral agreement and a sum of Rs.15,000/- was paid in advance as alleged? …OPP. 3.Whether the defendant No.1 has been avoiding the execution of sale deed as alleged? …OPP. 4.Whether the defendant No.1 in connivance with Dina Nath and Jaggata got a Rapt roznamcha No.87 entered with the Patwari relating to mortgage of khasra No.622, 626 and 322 in favour of the defendant No.2 as alleged? …OPP. 5.Whether the defendants on the basis of rapat rojnamcha’s entries illegally entered and attested the mutation No.741 & 372 as alleged? OPP 6. Whether the suit is not maintainable?...OPD 7. Whether the plaintiff has no locus standi to sue?...OPD 8. Whether this court has no jurisdiction to try the suit? …OPD. 9. Whether the suit is bad for non-joinder of the necessary parties?...OPD 9A.Whether the plaintiff has filed the suit in connivance with the defendant No.2 as alleged?....OPD-1. 6A.Whether suit is barred by limitation as alleged?...OPD. 10.Relief.” The learned Courts below held that the plaintiff had failed to prove that he was a tenant under Maya Devi mother of defendant No.1. They also came to the conclusion that the defendant No.1 had never agreed to sell the land in question to the plaintiff and therefore the question of specific performance of such agreement did - 4 - not arise. With regard to the mortgage no clear-cut findings have been given by either of the Courts. It would be pertinent to mention that in fact the learned trial Court has not given clear-cut findings as to who is in possession of the suit land but the learned Lower Appellate Court has recorded that admittedly the plaintiff is in possession of the suit land. This fact was denied by defendant No.1. I have gone through the evidence and find that the plaintiff has only relied upon the five receipts which are evidence of the fact that he has paid the land revenue of the land but there is no material placed on record to show that he ever entered into agreement or paid rent to Smt.Maya Devi mother of defendant No.1. Therefore, the finding of fact delivered by both the Courts below that the plaintiff is not a tenant cannot be said to be incorrect. Similarly, the plaintiff other than making a bald statement has failed to prove that an oral agreement was entered into between him and defendant No.1 for sale of the land. There is virtually no evidence in this behalf except the oral testimony of the plaintiff. In any event this agreement is stated to have been entered into between the parties some time in the year 1988 and the suit was - 5 - filed in the year 1996 and as such the suit for specific performance was time barred. Therefore, both the Courts below were justified in not giving the relief to the plaintiff. Having come to this conclusion, the question which arises is whether the defendant No.1 is in possession of the suit land. Admittedly, he is not in possession since according to her it is defendant No.2 who is in possession as mortgagee whereas defendant No.2 denied that he is in possession and according to him it is the plaintiff who is in possession of the suit land. Whatever be the situation, though the suit of the plaintiff has been dismissed, from the record it is apparent that the defendant No.1 is not in possession of the suit land and the only clarification which can be issued is that the defendant Nop.1 can take appropriate steps to recover the possession of the suit land in accordance with law. In view of the above discussion, I find that no substantial questions of law arising in the appeal which is dismissed. No costs. October 26, 2010. ( Deepak Gupta ), J. PV