The main legal point established in the judgment is the admissibility of oral evidence to prove a document as a sham document and the relevance of entries in account books under Sections 34, 65 and 92(1) of the Evidence Act, 1872.

Rajiv Sharma, J.

R.S.A. No. 314 of 1997:

1. This regular second appeal has been preferred against the judgment and decree passed by the learned District Judge, Solan in Civil Appeal No. 71-NL/13 of 1996 dated 31.10.1997.

2. The brief facts necessary for the adjudication of this regular second appeal are that the respondents/plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) filed a civil suit for possession by way of redemption in the Court of Sub Judge 1st Class, Nalagarh. The appellants/ defendants (hereinafter referred to as the defendants for convenience sake) contested the suit. The plaintiff filed replication to the written statements filed by the defendants.

3. The learned Sub Judge dismissed the suit on 23.9.1996. The plaintiff preferred an appeal against the judgment and decree dated 23.9.1996 before the learned District Judge, Solan. The learned District Judge, Solan allowed the appeal on 31.10.1997. This regular second appeal has been filed against the judgment and decree of the learned District Judge, dated 31.10.1997.

4. The regular second appeal was admitted by this Court on 10.3.1998 on the following substantial questions of law:

1. Whether the findings as recorded by the learned District Judge are devoid of legal force those being without proper appreciation, reading and discussion of oral and documentary evidence and pleadings?

2. Whether the mortgage deed Ex.PW1/A is constituting a sham transaction and the same could not be relied upon?

3. Whether the Civil Court had no jurisdiction to try the suit?

4. Whether the findings of the learned Sub Judge that the appellant is a tenant over the accommodation in question could not be up set in the absence of any just and legal claim?

5. Whether the transaction of alleged mortgage has not been established and decree for possession could not be passed?

5. Mr. G.D. Verma, learned Senior Advocate had strenuously argued that the judgment and decree dated 31.10.1997 passed by the learned District Judge is not sustainable in the eyes of law. He then contended that the mortgage deed dated 10.2.1982 Ex.PW-1/A was a sham transaction. According to him, the premises were let out to his client. Mr. K.D. Sood had supported the judgment and decree dated 31.10.1997.

6. I have heard the learned Counsel for the parties and gone through the record of the case carefully.

7. Since all the substantial questions of law are inter-connected, they are taken up together for discussion to avoid repeatedly referring to the evidence.

8. The mortgage deed was entered into between the plaintiff and the defendant on 10.2.1982, Ex.PW-1A which was registered before the Sub Registrar. The mortgage deed was scribed by PW-1 Haussan Chand and attested by Pohu Lal, PW-3 and the other witness has died. Ex.P-2 is the copy of mutation No. 316, dated 8.11.1987 attested by the Assistant Collector Grade-II on the basis of mortgage deed Ex.PW-1/A. This mutation had been given effect in the copy of Missal Hakiat, Ex.P-1 prepared during the settlement operation. Mr. G.D. Verma, learned Senior Counsel had strenuously argued that the suit premises were let out to his client by the plaintiff on monthly rent of Rs. 500/- and his client had been paying rent to the plaintiff and as such, the relationship of landlord and tenant existed between the parties. According to him, since the premises were let out to his client, Civil Court had no jurisdiction to try the suit. He further contended that in the month of December, 1988 the plaintiff had spent Rs. 10,000/- and according to him the value of the property was more than Rs. 1,00,000/- and the same could not be mortgaged for a paltry sum of Rs. 500/-. The Court has to consider whether the mortgage deed Ex.PW-1/A is a sham transaction to defeat the provisions of law.

9. The mortgage deed was executed on 10th February, 1982 and the mutation was attested on 8.11.1987. The defendant has conceded his status of a mortgagee at the time of attestation of the mutat