Himachal Pradesh High Court
Sher Singh vs Chhango Ram on 27 August, 2025
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.126 of 2025
.
Date of Decision : 27.08.2025
Sher Singh ...... Appellant
Versus
Chhango Ram ......Respondent
Coram:
The Hon'ble Mr. Justice Bipin Chander Negi, Judge
Whether approved for reporting?1 No
For the appellant
: Ms. Ragini Dogra, Advocate.
For the respondent : Nemo.
Bipin Chander Negi, Judge (oral)
The Appellant, by filing this appeal under section 100 of the
Code of Civil Procedure (for short, "the CPC"), has assailed the judgment
and decree dated 22.02.2025 passed by the learned Additional District
Judge, Chamba, District Chamba, Himachal Pradesh, in Civil Appeal No.09
of 2019, affirming the judgment and decree dated 26.03.2019, passed by
learned Civil Judge, Dalhousie, District Chamba, Himachal Pradesh, in Civil
Suit No.43 of 2011, titled Sher Singh vs. Chhango Ram and others.
2. The parties herein shall be referred to in the same manner as
they were referred to before the learned trial Court and in the impugned
judgment and decree, for the sake of convenience.
3. Succinctly, it was the case of the plaintiff that defendant No. 1,
who is recorded as the owner to the extent of a half share of the land
Whether reporters of Local Papers may be allowed to see the judgment?
comprised in Khata Khatoni No. 56/69 and 70, Khasra Nos. 6, 46, 157, 168,
169, 269, 318/1, 426, 470, 556, 30, 32, 41, 141, 145, 155, 166, 427, 555,
.
559, Kittas-20 measuring 14-08-00 Bighas situated at Mouza Rajein, Pargna
and Sub-Tehsil Sihunta, District Chamba H.P., had taken a sum of Rs.
2,000/- from the plaintiff's father, late Sh. Inder Singh. In lieu of this amount,
defendant No. 1 had, on 23.01.1986, executed a writing in favour of late Sh.
Inder Singh and handed over possession of a portion of his land, locally
known as 'Chhoi Ki Ghankar' measuring 8 path (approximately 01-00-00
Bighas) falling under Khasra No. 556. In the writing, defendant No. 1
acknowledged handing over possession and agreed to get the mutation of
the land attested in favour of late Sh. Inder Singh, failing which he agreed to
pay double the amount. Late Sh. Inder Singh, after coming into possession,
raised an orchard, constructed part of a house, a toilet, and a bathroom, and
used the land as an Angan and kitchen-garden, having spent over Rs.
3,00,000/- on these developments to the knowledge of the defendants, who
never objected. Late Sh. Inder Singh died in December 2009, remaining in
exclusive possession of the suit land with his family members.
4. The plaintiff, along with proforma defendants No. 6 and 7 (sons)
and No. 8 (widow), are his legal heirs. In May 2010, the plaintiff approached
defendant No. 1 to execute a sale deed for the land as agreed. Defendant
No. 1 agreed subject to a further payment of Rs. 10,000/-, which the plaintiff
paid on 25.05.2010. The next day, defendant No. 1 applied for and obtained
stamp paper worth Rs. 3,850/- for the sale deed and handed it to the
document writer, Sh. Sanjeev Kumar (PW-6), for drafting. However, as the
sale deed was about to be signed, defendant No. 2 (son of defendant No. 1)
and other family members intervened and took defendant No. 1 away,
preventing the execution. Subsequently, on 02.06.2010, defendant No. 1, in
.
connivance with defendant No. 2, executed a gift deed of his entire share in
the Khata-Khatauni in favour of defendant No. 2. Prior to this, on 27.04.2010,
defendant No. 1 had also executed a sale deed for 00-00-12 Bighas of land
out of Khasra No. 556 in favour of defendant No. 3 (the plaintiff's cousin),
despite knowing the plaintiff was in possession. Mutation No. 381 based on
the gift deed was attested on 06.07.2010 over the plaintiff's objections.
5. Defendant No. 2 later executed a power of attorney in favour of
defendant No. 3, and defendant No. 4 filed an application for partition of the
entire land based on the 2010 sale deed. On 25.05.2011, defendants No. 3
and 4, along with revenue officials, attempted to take forcible possession of
the suit property based on the partition proceedings. The plaintiff's
possession was confirmed in a demarcation report by the Girdawar Kanungo
on 29.01.2011. The plaintiff, seeking specific performance of the 1986
contract and permanent injunction, filed the suit.
6. The defendants No. 1 to 4 filed a joint written statement, raising
preliminary objections of limitation, no cause of action, and estoppel. On
merits, they denied that defendant No. 1 ever agreed to sell the land,
executed any writing, or handed over possession. They admitted the death of
Sh. Inder Singh but denied any agreement to execute a sale deed for Rs.
10,000/-. They alleged the purported sale deed preparation was a
connivance between the plaintiff, the scribe, and the witnesses. They
admitted defendant No. 4's application for partition but denied the validity of
the demarcation report. Defendant No. 5 did not contest and was proceeded
against ex-parte. Proforma defendants No. 6 to 8 did not file any written
statement. The plaintiff filed a replication reiterating the plaint's averments.
.
7. Based on the pleadings, the following issues were framed in the
suit:
1. Whether the plaintiff is entitled for specific performance of agreement
dated 23.01.1986, as prayed for? OPP.
2. Whether the plaintiff is entitled for decree of permanent prohibitory
injunction, as prayed for? OPP.
3. Whether the suit is not maintainable, as alleged? OPD.
4. Whether the suit is without cause of action, as alleged? OPD.
5. Whether the plaintiff is estopped by his own act and conduct to file the
present suit, as alleged? OPD.
6. Relief?
8. The plaintiff examined himself as PW-1 and nine other
witnesses. The defendants examined defendant No. 1 as DW-2 and three
other witnesses. The learned Trial Court, vide its judgment and decree dated
26.03.2019, decided issues No. 1, 2, 4, and 5 in the negative and issue No. 3
in the affirmative, thereby dismissing the suit.
9. Therefore a first Appeal was preferred contending that the
pleadings and evidence were not appreciated in the right perspective; the
trial court erred in holding the 1986 agreement was merely an
acknowledgment of an oral agreement; it wrongly discarded the testimonies
of the plaintiff's witnesses and the demarcation report Ex.PW-9/A; it
erroneously cast doubt on the purchase of stamp papers by defendant No. 1,
ignoring the Challan Ex.PW-6/B and the testimony of PW-7 from the
Treasury Office; and it failed to appreciate the proof of payment of Rs.
10,000/- and the preparation of the sale deed draft Ex.PW-6/A. It was
.
submitted that the defendants never alleged fraud or disputed the signatures
on the agreement Ex.PW-2/B and that the judgment is based on conjectures
and surmises. The first Appeal was dismissed leading to the present second
appeal.
10. In the present appeal the learned counsel for the appellant
contended that the courts below erred in law by dismissing the suit, arguing
firstly by fixating on the attestation witness's uncertainty, as the presence of
the executant is not a legal prerequisite for a valid document under Section 3
of the Transfer of Property Act. The initial burden of proof was discharged by
producing the document and its scribe, thereby shifting the onus onto the
defendant to specifically challenge the authenticity of the signatures. This
onus remained undischarged as the defendant never pleaded or proved that
the signatures were forged or fraudulently obtained.; secondly, that the
finding of invalidity due to non-registration was a grave error as the 2001
amendment to the Registration Act mandating registration of agreements to
sell cannot be applied retrospectively to the 1986 contract; and thirdly, that
the appellant's possession was conclusively established by the Demarcation
Report Ex.PW-9/A, an official revenue document which carries a presumption
of truth under Section 35 of the Indian Evidence Act and was erroneously
discarded by the trial court on untenable procedural grounds
11. Heard counsel for the appellants and perused the impugned
judgments.
12. The core of the dispute lies in the plaintiff's claim for specific
performance of an alleged agreement dated 23.01.1986 and a subsequent
.
un-executed sale deed from 2010. The plaintiff's case hinges on proving the
due execution of these documents and establishing his possession over the
suit land known as 'Chhoi Ki Ghankar'.
13. Regarding the agreement Ex.PW-2/B, the plaintiff examined the
scribe, Sh. Prem Singh (PW-2), and an attesting witness, Sh. Ching Singh
(PW-3). A perusal of the document reveals that it consists of two pages, with
the substantive recitals on the first page and signatures on the second. The
learned trial court rightly raised doubts about its execution as the first page
lacks the signatures of the executant, the attesting witness, or the scribe
himself. This omission creates a significant doubt about the authenticity and
completeness of the document. Furthermore, material contradictions
emerged in the evidence of the plaintiff's own witnesses; PW-3 stated during
cross-examination that the document was signed by the plaintiff's father, Sh.
Inder Singh, and was executed on the spot, whereas PW-2, the scribe, stated
it was executed at the house of Sh. Inder Singh. These inconsistencies go to
the very root of the plaintiff's case. While the defendant No.1 (DW-2) showed
ignorance about the document in cross-examination, this does not amount to
an admission, and the burden remained squarely on the plaintiff to prove its
due execution, which he failed to do.
14. Concerning the subsequent document Ex.PW-6/A, the un-
executed sale deed from 2010, the plaintiff failed to establish a causal
connection between it and the earlier 1986 agreement. A bare perusal of
Ex.PW-6/A shows it was never signed by any party and, crucially, it contains
no reference to the prior agreement of 1986 or the specific description of the
suit property as 'Chhoi Ki Ghankar'. The fact that stamp papers were
.
purchased in the name of defendant No.1, as proved by PW-7, is not by itself
conclusive proof of an agreement to sell, especially in the absence of any
signatures on the stamp papers or the drafted deed. Therefore, this
document also fails to advance the plaintiff's case for specific performance.
15. On the question of possession, the plaintiff relied on the
testimonies of PW-4 and PW-5, who, despite affirming the plaintiff's
possession, were found to be completely unaware of the essential details of
the suit property, such as its Khata-Khatauni and Khasra numbers. Their
general assertions about the name of the land and possession were
insufficient to prove the claim, particularly as the name 'Chhoi Ki Ghankar'
finds no mention in the revenue records. The plaintiff also relied on a
demarcation report Ex.PW-9/A, prepared by PW-9. However, the witness
admitted in cross-examination that the demarcation was not conducted to
determine possession but was related to the existence of a tree, and the
report merely recorded the plaintiff's own self-serving statement regarding his
possession. Furthermore, the learned trial court correctly observed that this
report, not having been confirmed by a Superior Revenue Officer as
mandated by the Land Record Manual, was of no evidentiary value.
16. In sum, the plaintiff miserably failed to prove the due execution
of the foundational agreement Ex.PW-2/B or the subsequent document
Ex.PW-6/A. The evidence adduced to prove possession was unreliable and
insufficient. The learned trial court meticulously considered each material
aspect of the evidence and rightly concluded that the plaintiff was not entitled
to the relief of specific performance of the contract or a permanent prohibitory
injunction.
.
17. In the aforesaid facts and attending circumstances, there arises
no question of law, much-less a substantial question of law for consideration
of the Court, therefore, the appeal is dismissed, being devoid of any merit.
Pending miscellaneous applications, if any, also stand disposed
of.
August 27, 2025 (KS/T.B.)
r to (Bipin Chander Negi)
Judge
