Rajiv Sharma, J. 1. This regular second appeal is directed against the judgment and decree of the learned District Judge, Kullu, H.P. dated 6.6.2003, passed in Civil Appeal No.09 of 2002. 2. Key facts, necessary for the adjudication of this regular second appeal are that the predecessor-in-interest of the plaintiffs, namely, Sh. Poshu Ram, has filed suit for possession of house shown in the site plan attached with the Plaint and for recovery of Rs. 500/- per month by way of mesne profit for the use and occupation of the house in suit and also for permanent prohibitory injunction. According to the plaintiffs, the land measuring 9 biswas comprising in khata khatauni No. 428 min/503 min, Kh. No. 555, situated in Phati Mohal, Kothi Khokhan, Tehsil and District Kullu, is recorded as Phati Abadi which was owned and possessed by the plaintiff as shown in the copy of jamabandi for the year 1993-94 and on the portion of this land a house of plaintiff measuring 27 x 14 Haath is also standing and that adjoining to the said land and house of the plaintiff abuts land comprising Kh. No. 551 and 552 which was also owned and possessed by the plaintiff over which the fruit bearing orchard of the plaintiff is also standing. An agreement was entered into between the plaintiff and defendant No. 1 to sell the fruit crop of the orchard comprising Kh. No. 551 and 552 for the fruit seasons from 1997 to 2001 for consideration of Rs. 50,000/- and Rs. 40,000/- was payable by the defendant No. 1 to the plaintiff on or before 10.7.1997. The defendant has committed breach of the agreement. The defendant No. 1 has requested the plaintiff to allow him to keep some bardana in suit house and to allow defendant No. 2 to keep him as his Chowkidar, namely Sh. Purkhu. The plaintiff granted licence and permission to defendant No. 1 to use and occupy the house for two months w.e.f. 10.4.1997 to 9.6.1997. He was also entitled to recover Rs. 500/- towards mesne profits. 3. The suit was contested by the defendants. According to them, the original plaintiff was neither owner nor in possession of the property in suit and the site plan was not correct. The house did not exist on the abadi comprising Kh. No. 555. He was also entitled to recover Rs. 500/- towards mesne profits. 3. The suit was contested by the defendants. According to them, the original plaintiff was neither owner nor in possession of the property in suit and the site plan was not correct. The house did not exist on the abadi comprising Kh. No. 555. It is also denied that on the request of defendant No. 1, the original plaintiff allowed defendant No. 1 to use and occupy the house as licensee for two months. It is also contended that since the original plaintiff has no right, title or interest over the suit land nor was owner-in-possession of the property in suit. Infact, the plaintiff was not residing or right holder of Phati Mohal. He was resident of Phati Balh. The defendant No. 1 was resident and right holder of Phati Mohal from the time immemorial. The father of defendant No. 1 has constructed house 22 years back on the portion of abadi in suit land comprising Kh. No. 555. 4. The replication was filed by the plaintiff. The learned Senior Sub Judge, Kullu, H.P. framed the issues on 17.1.1998. The learned Senior Sub Judge, Kullu, H.P., dismissed the suit on 19.12.2001. Sh. Chobe Ram, feeling aggrieved, preferred an appeal before the learned District Judge, Kullu. The learned District Judge, Kullu, partly allowed the same on 6.6.2003. Hence, this regular second appeal. 5. This Regular Second Appeal was admitted on the following substantial question of law on 25.5.2004: “1. Whether document/affidavit Ext. PW-7/A could not have been read in evidence by the learned first appellate Court as the same was not pleaded and proved in accordance with law which vitiated the findings arrived at by the learned first appellate Court?” 6. Mr. Jagan Nath, Advocate, for the appellant has supported the judgment and decree passed by the learned Senior Sub Judge, Kullu. He then contended that the affidavit Ext. PW-7/A dated 17.5.1995 could not be read in evidence by the learned first appellate Court since the same was neither pleaded in the plaint nor proved in accordance with law. On the other hand, Mr. T.S.Chauhan, Advocate, has supported the judgment rendered by the first appellate Court dated 6.6.2003. 7. I have heard the learned Advocates for the parties and gone through the judgments and records of the case carefully. 8. PW-1 Sh. On the other hand, Mr. T.S.Chauhan, Advocate, has supported the judgment rendered by the first appellate Court dated 6.6.2003. 7. I have heard the learned Advocates for the parties and gone through the judgments and records of the case carefully. 8. PW-1 Sh. Poshu Ram has testified that he was owner of the land in the suit over which 1 ½ storyed slate posh house and apple plants of 28 years old were raised. He constructed the house in the suit land about 14 years ago. He was having his orchard of 14/15 bighas abutting to the suit land. Out of 14/15 bighas of his land, 4 ½ bighas of land was given to the tenants and the tenants sold the land to Chobe Ram in the year 1993. He inherited the land in suit from his mother in the year 1956 and since then he has been possessing the same. He filed a suit in the Court. The suit was compromised between the parties. The defendant No. 1 has sworn in an affidavit which was attested by the Executive Magistrate wherein the defendant has agreed to give two karam wide passage through Kh. No. 553 to give access to Kh. Nos. 551, 552 and 555 and after purchasing the land from his tenants, Brestu and others Chobe Ram resold the same and made colony. Defendant No. 1 requested him to give the house in suit for two months to keep his bardana therein which request was accepted by him and after two months, when he demanded the possession of his house from Chobe Ram, the defendant asserted the same to be his Phati abadi having possession over it. The defendant has removed six apple plants. Police came to the spot. Chobe Ram has installed electricity meter over it and rented out the same to Pukhru Ram. He submitted an application for appointment of L.C. The site plan of the house was prepared by Nidhi Singh. He proved shajra nasab Ext. PW- 1/F. He proved Ext. PW-1/G shajra nasab of phati abadi of Fulnu Devi. He proved shajra nasab Ext. PW-1/H and copy of abadi Ext. PW-1/I. He also proved copy of musabi Ext. PW-1/J, copy of mutations Ext. PW-1/K to PW-1/M alongwith the copies of jamabandi Ext. PW-1/N and PW-1/O. 9. PW-2 Madan Lal deposed that Poshu Ram was having orchard and 1 ½ storyed house. He proved shajra nasab Ext. PW-1/H and copy of abadi Ext. PW-1/I. He also proved copy of musabi Ext. PW-1/J, copy of mutations Ext. PW-1/K to PW-1/M alongwith the copies of jamabandi Ext. PW-1/N and PW-1/O. 9. PW-2 Madan Lal deposed that Poshu Ram was having orchard and 1 ½ storyed house. The house was constructed in the year 1975. 10. PW-3 Beli Ram testified that the suit land was owned by Poshu Ram. There was apple orchard1 ½ storyed house over the same. It was in possession of Chobe Ram since 1997. Chobe Ram has also cut apple trees. 11. PW-4 Prem Dass Bhatia, deposed that Poshu Ram is owner of the land in suit over which 1 ½ storyed house and fruit orchard are standing. The house of Phulma Devi Ward Panch and Dev Raj abuts the land in suit. Chobe Ram had taken the orchard of Poshu on contract and then took the possession of the same. Chobe Ram had white washed the house in suit and installed the electricity meter and also raised retaining wall. Chobe Ram is not having any land abutting land in suit. Chobe Ram’s father was having 2 bighas five biswas of land and a house which was dismantled. 12. According to PW-5 Sh. Narender Sharma, affidavit of Chobe Ram dated 17.5.1995 was entered at Sr. No. 303 in his register. He has not brought the photocopy of the original affidavit as it was destroyed as per rules. 13. PW-6 Nidhi Singh has proved site plan Ext. PW-1/A. 14. PW-7 Chuni Lal Sharma, Advocate, Kullu, has stated that he knows Chobe Ram. In affidavit Ext. PW-7/A, he identified Chobe Ram, but this affidavit was not attested by the Executive Magistrate in his presence nor any person put signatures in his presence. The signature of defendant was already there on the affidavit. He identified Chobe Ram in the precincts of the Court. He never went to the Executive Magistrate and Ext. PW-7/A was brought to him by Chobe Ram. 15. PW-8 Dr. R.Sharma, Asstt. Government Examiner of Questioned Documents has testified that he examined several documents and gave his opinion. He received the documents from the Court of Senior Sub Judge, Kullu vide letter No. 2237 dated 21.12.2000 alongwith Q-1 to Q-3, Ext. PW-7/A was brought to him by Chobe Ram. 15. PW-8 Dr. R.Sharma, Asstt. Government Examiner of Questioned Documents has testified that he examined several documents and gave his opinion. He received the documents from the Court of Senior Sub Judge, Kullu vide letter No. 2237 dated 21.12.2000 alongwith Q-1 to Q-3, Ext. PW-7/A and admitted signatures A-1 to A-3 which are Vakalatnama and written statement and after examining these documents he came to the conclusion that Q-1 to Q-3 and A-1 to A-3 were written by the same person. He proved his reports Ext. PW-8/A and PW-8/B. 16. Sh. Chobe Ram has appeared as DW-1. He testified that he was owner-in-possession of the house in suit which has been constructed on the abadi land at the time of his fore fathers which is 23’ x 23’. He also constructed a shed. He pays the house tax of the house and proved receipts Ext. D-1 to D-5. He has also installed electricity meter and proved the bills alongwith receipts thereof which are Ext. D-6 to Ext. D-8. According to him, the plaintiff was resident of Phati Balh, Kothi Majara having no house in Phati Mohal. Purkhu, defendant No. 2 was his tenant and the plaintiff filed the suit just to harass him. 17. DW-2 Hari Chand has supported the version of DW-1 Chobe Ram. 18. The case of the plaintiff, precisely, is that Chobe Ram has sworn in an affidavit Ext. PW-7/A, before the Executive Magistrate, Kullu vide which he agreed to give two karam wide passage through Kh. No. 553 to give access to Kh. Nos. 551, 552 and 555 to Poshu Ram. 19. Ext. PW-7/A is dated 17.5.1995 and the compromise is dated 16.5.1995. If the matter had already been compromised on 16.5.1995, there was no occasion to Chobe Ram to sworn in an affidavit dated 17.5.1995. PW-7 Chuni Lal Sharma, Advocate, as noticed above, has admitted that he identified Chobe Ram, but this affidavit was not attested by the Executive Magistrate in his presence nor any person put signatures in his presence. The signature of defendant was already there on the affidavit. He identified Chobe Ram in the precincts of the Court. He never went to the Executive Magistrate and Ext. PW-7/A was brought to him by Chobe Ram. 20. The signature of defendant was already there on the affidavit. He identified Chobe Ram in the precincts of the Court. He never went to the Executive Magistrate and Ext. PW-7/A was brought to him by Chobe Ram. 20. The plaintiff has moved an application under Order 18 Rule 17A and under Order 18 Rule 2(4) read with Section 151 CPC. It was allowed on 12.11.1998. Thereafter, the plaintiff again moved an application under Order 18 Rule 17 and under Order 18 Rule 2(4) read with Section 151 CPC. According to the averments contained in the application, the plaintiff at the time of examination of PW-7 Sh. Chuni Lal, Advocate, he could not put specific suggestions. The learned Sr. Sub Judge, Kullu, has rightly come to the conclusion while deciding the application on 25.6.1999 that it was for the plaintiff to have taken all care and caution to have put all the suggestions to said PW—7 Sh. Chuni Lal when he appeared in the witness box. Rather, PW-7 Chuni Lal has not supported the case of the plaintiff. Thus, Chuni Lal, PW-7 could not be recalled for putting further suggestions to him. It was for the plaintiff to prove the affidavit Ext. PW-7/A dated 17.5.1995. Thus, the learned Sr. Sub Judge, Kullu, has rejected the application on 25.6.1999. The plaintiff filed another application under Order 18 Rule 17A and Order 18 Rule 2(4) read with Section 151 CPC for comparison of signatures of defendant on the affidavit and Sh. N.C.Sood, Dy. Government Examiner, office of the Government Examiner of Questioned Douments, Ministry of Home Affairs, was ordered to be summoned for 11.7.2001 vide order dated 16.5.2001. The plaintiff filed yet another application under Order 18 Rule 17A and order 18 Rule 2(4) for placing on record copy of Order dated 17.5.1995 passed by the Sr. Sub Judge, Kullu in Civil Suit No. 87/94 and application dated 16.5.1995 for preponment and taking case on that date and also to prove certified copy of compromise dated 16.5.1995 in Civil Suit No. 87 of 1994. The application was dismissed by the learned Sr. Sub Judge, Kullu on 20.8.2001. Sub Judge, Kullu in Civil Suit No. 87/94 and application dated 16.5.1995 for preponment and taking case on that date and also to prove certified copy of compromise dated 16.5.1995 in Civil Suit No. 87 of 1994. The application was dismissed by the learned Sr. Sub Judge, Kullu on 20.8.2001. The learned trial Court has noticed that the plaintiff wanted to place on record documents dated 17.5.1995 and 16.5.1995 but no reason was assigned why those were withheld by the plaintiff for such a long period and it was not the case of the plaintiff that after exercising due diligence he could not produce the same at the time when he was leading his evidence. The application was rejected on 20.8.2001. 21. Mr. Jagan Nath, Advocate, has taken the Court through the plaint. There is no averment with regard to Ext. PW-7/A. In view of this, the plaintiff ought to have made a specific averment in the plaint and then could lead the evidence to prove the affidavit. The plaintiff has not examined the Executive Magistrate who has attested the affidavit on 17.5.1995. The Court, as noticed above, that the compromise is dated 16.5.1995 and the affidavit was sworn in on 17.5.1995. There was no occasion for the Chobe Ram to sworn in an affidavit after the compromise had already been arrived at on 16.5.1995. 22. The learned first appellate court has failed to take into consideration the repeated filing of application by plaintiff under Order 18 Rule 17 and under Order 18 Rule 2(4) read with Section 151 CPC to prove the affidavit Ext. PW-7/A in order also to wriggle out of the statement made by PW-7 Chuni Lal Advocate. The trial Court has correctly appreciated the oral as well as documentary evidence, more particularly, Ext. PW-7/A while dismissing the case of the plaintiff but the first appellate Court has erred in law by placing reliance on Ext. PW-7/A, which has not been proved in accordance with law. It was not pleaded in the plaint that defendant No. 1 has sworn in an affidavit on 17.5.1995. The defendant No. 1 has proved on record the copies of house rent payable by him vide Ext. D-1 to D-5 and also the electricity bills. PW-7/A, which has not been proved in accordance with law. It was not pleaded in the plaint that defendant No. 1 has sworn in an affidavit on 17.5.1995. The defendant No. 1 has proved on record the copies of house rent payable by him vide Ext. D-1 to D-5 and also the electricity bills. The first appellate Court has wrongly treated the affidavit as admissible on behalf of defendant Chobe Ram to come to the conclusion that the plaintiff was owner of the land comprised in Kh. No. 555. The substantial question of law is answered accordingly. 23. Consequently, the Regular Second Appeal is allowed. The judgment of the trial Court dated 19.12.2006 is restored. The judgment of the first appellate Court dated 6.6.2003 is set aside.