IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 300/2001 Reserved on: 24.6.2011 Decided on:30.8.2011 ___________________________________________________ Raj Chand. …Appellant. Versus Krishan Dev. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the appellant : Mr. Bhupender Gupta, Sr. Advocate with Mr. Ajeet Jaswal, Advocate. For the Respondents : Mr. N.K. Thakur, Advocate for respondent No.1. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 10.4.2001 rendered by the learned District Judge, Hamirpur in Civil Appeal No.24 of 1994. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondent- plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit for specific performance 1 Whether reporters of the local papers may be allowed to see the judgment? No 2 on the basis of contract dated 20.11.1987 (Ex.P-1). An agreement was entered into between the plaintiff and appellant-defendant (hereinafter referred to as ‘defendant’ for convenience sake) and proforma respondent-proforma defendant (hereafter referred to as ‘proforma defendant’ for convenience sake). According to the agreement, defendant and proforma defendant had to pay a sum of ` 15,000/- to the plaintiff. Proforma defendant paid a sum of ` 7,500/- to the plaintiff. However, appellant-defendant has not performed his part of agreement. In other words, he has not paid a sum of ` 7,500/- to the plaintiff. Plaintiff has not claimed any relief against the proforma defendant. According to the plaintiff, he has delivered the possession of two ancestral residential houses to the defendant but the defendant has not paid a sum of ` 7,500/- to him, which he had agreed to pay in writing in the presence of independent witnesses. There were four ancestral residential houses and two cattle sheds in which the plaintiff, defendant and proforma defendant had equal share. Defendant, namely, Raj Chand and proforma defendant, namely, Man Chand took four residential houses, i.e. two residential houses each, which were in good condition and two cattle sheds, 3 which were in bad condition, were allotted to the plaintiff. 3. The suit was contested by the defendant. According to him, he was already in possession of two residential houses and one cattle shed. The plaintiff has not delivered any possession of two ancestral residential houses to him. According to him, there were only two ancestral residential houses and one cattle shed of plaintiff and defendants. The other two residential houses and one cattle shed had been purchased by the defendant from his uncle Rania Ram and the amount was paid by the defendants. 4. The replication was filed by the plaintiff. Issues were framed by the trial court on 11.6.1993. Trial court decreed the suit on 2.2.1994. Defendant, namely, Raj Chand preferred an appeal before the learned District Judge, Hamirpur. He dismissed the same on 10.4.2001. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. Whether the inadmissible document Ex.P-1, the alleged agreement without registration and stamp duty as envisaged under the provisions of section 17 of the Indian Registration Act and Stamp Act could be proved and relied upon by the courts below in evidence? 4 2. Whether the non-appearance of the plaintiff to prove his case before the trial court has vitiated the proceedings of the suit and both the courts below have wrongly relied upon the evidence of the attorney of the plaintiff? 5. Mr. Bhupender Gupta, learned Senior Advocate has strenuously argued that Ex.P-1 was not admissible in evidence. According to him, Ex.P-1 was neither registered nor duly stamped as envisaged under section 17 of the Indian Registration Act and Stamp Act. He then argued that the plaintiff has not appeared as a witness to prove his case before the trial court and thus the proceedings before both the courts below stood vitiated. 6. Mr. N.K. Thakur has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have perused the record carefully. 8. Since both the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 9. The agreement was executed between the parties on 20.11.1987. It was scribed by PW-6 Krishna 5 Devi in presence of PW-2 Jagdish Chand, PW-3 Bugga Ram, PW-4 Chet Ram and PW-5 Swaran Singh. According to the terms and conditions of the agreement, the defendants had agreed to pay a sum of ` 15,000/- to the plaintiff in lieu of giving up his share in the residential house, the rooms of which were allotted to the defendant and the proforma defendant. Defendant has not disputed his signatures on Ex.P-1. His precise contention was that the possession of the rooms of the residential house had not been delivered to him. This version has rightly been discarded by both the courts below. Defendant has not taken any steps to rebut the agreement Ex.P-1, which was entered into between the parties on 20.11.1987. Even DW-2 Bansi Ram has not denied the execution of the agreement Ex.P-1. Defendant had not taken any objection with regard to admissibility of agreement Ex.P-1 in the written statement as well as before the first appellate court. In view of this, this question cannot be permitted to be raised at this stage. 10. Plaintiff has led ample evidence to prove Ex.P-1, which was scribed, as noticed above, by PW-6 Krishna Devi and it was signed by the marginal witnesses. Defendant has not led any evidence to prove 6 that the execution of Ex.P-1 was the outcome of undue influence, fraud and misrepresentation. PW-2 Jagdish Chand, PW-3 Bugga Ram, PW-4 Chet Ram and PW-5 Swaran Singh have deposed that they have put their signatures on Ex.P-1. According to PW-5 the parties were present at the time when Ex.P-1 was executed. PW-6 has specifically deposed that she has read over the contents of Ex.P-1 to the parties and thereafter they have signed the same. Merely that the plaintiff has not appeared as a witness will not vitiate the trial, particularly when General Power of Attorney (PW-1 Sh. Jawahar Singh) has appeared. 11. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. No costs. (Justice Rajiv Sharma), Judge. 30.8.2011 *awasthi*