HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 362 of 2001 Reserved on: 10.8.2011 Decided on: 27.8.2011. Sita Devi ……Appellant/plaintiff. Versus Shanti Parkash and another ………Respondent/Defendants. Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.N.K. Thakur, Advocate. For the respondents: Mr.Sanjeev Kuthiala, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant/plaintiff under Section 100 CPC against the judgment and decree, dated 31.1.2001, passed by the learned District Judge, Una, H.P., whereby he affirmed the judgment and decree, dated 16.4.1994, passed by the learned Sub Judge Ist Class, Amb, dismissing the suit of the appellant/plaintiff. 2. Briefly stated, the facts of the case are that the appellant, hereinafter also referred to as the plaintiff, filed a suit for permanent injunction as against the respondents, hereinafter also referred to as ________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - the defendants. The allegations made by the plaintiff were that the land in suit measuring 8 kanal 3 marla comprised in Khasra No.245 (new) is owned and possessed by the plaintiff. The defendants are threatening to interfere in the possession of the plaintiff over the suit land, hence the suit for permanent injunction filed by the plaintiff. 2. Defendants took up preliminary objections in regard to maintainability, limitation, locus standi etc. On merits, they pleaded that the suit land was owned and possessed by Shri Santu, son of Shri Munshi, who was the husband of the plaintiff. During his life time, Santu on 30.5.1991 mortgaged the suit land with possession to Madho, father of defendant No.1, and thereafter defendant No.1 alongwith other co-sharers are coming in possession of the suit land as mortgagee and the plaintiff and her husband never got the suit land redeemed and the defendants have become owner by efflux of time. Thus, it was pleaded that the suit land was owned and possessed by defendant No.1 alongwith other co- sharers and as such the suit is liable to be dismissed. 3. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP - 3 - 2. Whether the plaintiff is entitled to the relief of injunction? OPP 3. Whether the suit is within time? OPP 4. Whether the husband of the plaintiff had mortgaged with possession the suit land with the father of the defendant No.1, on 30.5.51 for a sum of Rs.700/-. If so, its effect? OPD 5. Whether the defendants have become owners in possession of the suit land by efflux of time? OPD 6. Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment decided all the issues as against the plaintiff and in favour of the defendants and consequently dismissed the suit of the plaintiff. On appeal, those findings were affirmed by the learned District Judge. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The submissions made by the learned counsel for the appellant were that the mortgage deed in question relied upon by the court had not seen the light of the day since 1951 till 1988 when it was produced during the hearing of the case. It was submitted that there was no reference of jamabandi where the land is situate and as such the identity of the land was not established. It was also submitted that this document was never brought to the notice of the revenue authorities and the revenue - 4 - entries continued in favour of the plaintiff and as such this document was wrongly relied upon by the courts below and the findings to the contrary are liable to be reversed. 8. On the other hand, the learned counsel for the respondents had supported the impugned judgment and decree for the reasons recorded therein. 9. To substantiate his submission that the document was not required to be compulsorily registered, the learned counsel for the respondents had relied upon the decision in Gulab Singh and another versus Smt.Dolbaru and others, 1988 (1) Sim.L.C. 340, wherein a reference was made to the provisions of Transfer of Property Act and there was an exchange of land in that case. It was held that the exchange could be effected orally between the parties and it was not necessary to effect the same by a registered document only. The exchange had taken place and the mutation of exchange was sanctioned on 30.6.1963. It was observed in para 16 of the judgment that the contention of the learned counsel that an exchange has to be effected by a registered document cannot be accepted because all the provisions of the Transfer of Property Act were not applicable in Tehsil Kullu which was in State of Punjab in the year 1963. The provisions of Section 54 regarding sale, Section 107 about lease and Section 123 in regard to gift - 5 - were made applicable in the State of Punjab by issuance of a notification. 10. On appraisal of the record of the case, it is clear that the plaintiff had placed on record Ext.P-1, jamabandi for the year 1984-85, showing the plaintiff to be in possession of the suit land as owner. Copy of the Khasra Girdavari Ext.P-2 from Kharif 85 to Rabi 87 also showed the similar entries. To rebut this evidence, the defendants had examined oral evidence and the report of the Kanungo was proved as Ext.D-1 by examining the Kanungo who had gone to the spot, made an enquiry and submitted his report, dated 6.10.1988. Both the courts below had held that the presumption of correctness attached to the jamabandi entries in favour of the plaintiff stands rebutted by the report of the Kanungo, which is of subsequent date and it shows that the plaintiff was not found in possession of the suit land. It had also been observed by both the courts below that since the plaintiff had not appeared in the witness box and her son-in-law had only appeared in the witness box, the presumption of correctness attached to the entries in the jamabandis stood rebutted by the report of the Kanungo and the case of the plaintiff has not been substantiated by the witnesses of the plaintiff since none had appeared except the son-in-law. A perusal of the statement of PW-1 Chrinji Lal rather shows that he has set up his own claim to be in possession and not that the suit land was in possession of the plaintiff and he has - 6 - claimed that he had been cultivating the suit land. He also admitted that the plaintiff was fit to depose. Therefore, adverse inference was rightly drawn against the plaintiff for not appearing in the witness box. Those findings of the learned trial Court holding that the plaintiff had failed to prove her possession were affirmed by the learned Appellate Court and those conclusions do not require reappraisal of evidence and drawing fresh conclusions. 11. Moreover, the dispute in question was in regard to admissibility of the mortgage deed executed in the year 1951. It has been held by both the courts below that the scribe of the mortgage deed had appeared in the witness box and the document was more than 30 years old and was coming from appropriate custody i.e. the defendant in whose favour it was executed and presumption of correctness was attached to this document, which was over 30 years old. The learned counsel for the appellant during the course of arguments has raised an issue that it does not refer to the khasra numbers of the suit land or that attesting witnesses were not examined but a perusal of the deed shows that it refers to the khasra number, which tallies with the suit land and it could not be insisted upon that the witnesses should be examined after a period of 30 years when they may not be alive and the scribe had appeared in the witness box and, therefore, the mortgage deed was rightly relied upon by - 7 - both the courts below and those findings are not liable to be reversed on any ground. 12. In view of the above discussion, I hold that there is no merit in the appeal filed by the appellant, which is liable to be dismissed and the same is dismissed accordingly. However, the parties are left to bear their own costs. August 27, 2011 (V.K. Ahuja), (tilak) Judge.