JUDGMENT R.L. Khurana, J. :- This second appeal at the instance of the defendant has been directed against the judgment and decree, dated 23.5.1994 of the learned District Judge, Nahan, reversing the judgment and decree dated 30.5.1992 of the learned Sub Judge 1st class, Nahan.

2. The respondent-plaintiff filed a suit for declaration to the effect that the gift deed dated 5.8.1987 in respect of 4 biswas of land comprising of Khasra No.839/4/1/3 of Mauza Dhar Taran, Tehsil Renuka, district sirmaur (hereinafter referred to as the property in dspute) purported to have been executed by him in favour of the defendant was null and void and not binding on his rights since the same was as a result of fraud, mis-representation and undue-influence. As a consequential relief the plaintiff had prayed for restraining the defendant from interfering in his possession over the property in dispute. In the alternative, a decree for possession of the property in dispute was prayed for.

3. It was averred that the plaintiff is living in village Dhar Taran for the last about 20 years and working as a carpenter. He purchased the property in dispute with a view to construct a house therein for his own residence. He constructed a kitchen and a cattle shed therein. He also obtained a water connection. He had also constructed a platform in the property, in dispute for carrying on his work as a carpenter. The defendant, who is serving in the Medical Department, became friendly with the plaintiff. They started visiting each other. The plaintiff off and on used to borrow money from the defendant to meet the requirements of his own medical treatment. As a result of such borrowings, a sum of Rs. 3500A became due from him to the defendant. In July 1987, the defendant started asking for the repayment of such amount. The plaintiff had no money with him. He, therefore, on the suggestion of the defendant, agreed to mortgage the property in dispute in favour of the defendant. The plaintiff was taken to Sangrah by the defendant for the purpose of execution of the mortgage deed. His signatures were obtained by the defendant on a deed by making him to believe that the same was a mortgage deed. After the execution of such document, the defendant remained silent till April 1988. The defendant thereafter started asking the plaintiff and his wife to deliver the possession of the property in dispute to him, by proclaiming that the same stood gifted to him. The plaintiff then came to know that instead of mortgage deed, a gift deed was got executed from him fraudulently. It was further pleaded that though the plaintiff and his wife objected to the attestation of mutation on the basis of gift deed in favour of the defendant, the Assistant collector 2nd Grade by ignoring the objections had sanctioned the mutation in favour of the defendant. Further case of the plaintiff was that the scribe and the marginal witnesses of the gift deed were not know to him. They were closely associated with the defendant and had helped him in getting the gift deed executed fraudulently. That on 13.6.1988, the defendant had thrown out his belongings from the kitchen and had locked the same. Though a report was made by him to the police, no action was taken. Lastly, it was pleaded that the defendant was a non-agriculturalist and as such no gift could have bee made and registered in his favour in view of the provisions contained in Section 118, H.P. Tenancy and Land Reforms Act, 1972.

4. The defendant while resisting the suit claimed himself to be the "Purohit" of the plaintiff. It was pleaded that the plaintiff out of his own free will and consent had voluntarily executed a gift deed qua the property in dspute in his favour. The allegations of fraud, mis- representation and undue influence put forth by the plaintiff were denied. He averred that at no time the plaintiff had over borrowed money from him. The plaintiff on the very day of the purchase of property in dspute had executed a power of attor

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