Achhar Singh through LRs & Ors. v. Surjit Singh through LRs & Ors.

Mr. S.S.Brar, Advocate for the appellants. Mr. Sanjay Majithia, Senior Advocate with Mr. Shailender Sharma, Advocate for respondents. K.C.PURI, J. This is a regular second appeal directed by defendant- appellants against the judgment dated 14.9.1985 passed by Mr. M.S.Ahluwalia, Additional District Judge, Bathinda vide which the appeal preferred by the plaintiff-appellants against the judgment dated 30.7.1984 passed by Shri Harbans Lal, Sub Judge Ist Class, Phul dismissing the suit of the plaintiffs stood set aside and the suit was decreed. Shorn off unnecessary details, the case of the plaintiffs as set forth in the plaint is that Baggu Singh alias Bhajan Singh owned 1/3rd share in 124 kanals 4 marlas of land mentioned in para No.1 of the plaint RSA No.229 of 1986 2 situated in village Kalayan Malka, while Lal Singh and Harnam Singh owned remaining 2/3rd share in equal shares. Bhajan Singh had also 1/6th share in Khasra No.620, while remaining 5/6 share in this khasra number was owned by Harnam Singh and Lal Singh in equal shares. In 52 kanals 4 marlas of land, in para No.2 of the plaint situated in village Kalayan Sadda, Baggu Singh alias Bhajan Singh, Lal Singh and Harnam Singh owned 1/3rd share each. Harnam Singh owned 28 kanals 4 marlas of land comprising khewat Khatauni No.412/945 Khasra Nos.2276, 2277 and 2915 in village Maluka and he also had land in village Maluka measuring 78 kanals 18 marlas comprising of khasra Nos.2274, 2275, 2413, 2414 and 2415. It has been further pleaded that about 22/23 years ago, from the date of filing the original suit, Baggu Singh alias Bhajan Sigh surrendered his entire share of land in villages Kalayan Malka and Kalayan Sadda to Harnam Singh in exchange of his 28 kanals 4 marlas of land situated in village Maluka and possession thereof was transferred under the compromise. Mutation No.1838 in Kalayan Sadda and mutation No.2427 in village Kalyan Malka regarding the share of Bhajan Singh were sanctioned in favour of Harnam Singh but Harnam Singh not mutated in favour of Bhajan Singh as report in this regard was not made to the Patwari, but despite that he continued to be in possession of his land as owner. Later on, Harnam Singh sold his 78 kanals 18 marlas of land of village Maluka comprising in khasra Nos.2274, 2275, 2413, 2414 and 2415 to plaintiffs and defendant No.6 Malkiat Singh for Rs.9000/- by registered sale deed dated 30.5.1963. Suit land measuring 68 kanals 12 marlas of village Kalayan Maluka and Kalayan Sadda have been allotted in lieu of the lands mentioned above. Plaintiffs and defendant RSA No.229 of 1986 3 No. 6 are the heirs of Bhajan Singh, while defendants No. 1 to 4 are the heirs of Harnam Singh. Mutation No. 11536 regarding change of ownership of 28 kanals 4 marlas of land comprising khasra Nos. 2276, 2277 and 2915 of village Maluka was sanctioned in favour of plaintiffs and defendant No. 6 Malkiat Singh on 18.4.1979, but on appeal, the said mutation case was remanded, and the mutation has been rejected. Taking clue from rejection of this mutation, defendants No. 1 to 3 threatened to dispossess the plaintiffs from the land without any right or title. Appellants pleaded that if the transaction of exchange was not proved, then they have ½ share in 68 kanals 12 marlas of land as stated in head note of the plaint, situated in Kalayan Maluka and Kalyan Sadda. Defendants No. 1 to 4 heirs of Harnam Singh contested the suit by filing written statement. They denied that Baggu Singh alias Bhajan Singh had 1/3rd share in lands as mentioned in para No. 1 and 2 of the plaint and they also denied the factum of oral exchange as stated by the plaintiffs in para No. 4 of the plaint and they asserted that 28 kanals 4 marlas and 78 kanals 18 marlas of land of village Maluka described in para No. 3 of the plaint, was owned by Harnam Singh and now they are in possession of this land as owners. They pleaded that the suit was not within time and suffered from non-joinder of necessary parties. Following issues were framed:-

1. Whether Baggu Singh @ Bhajan Singh was the owner of 1/3rd and 1/6th shares in the land mentioned in para No. 1 of the plaint? OPP.

2. Whether said Baggu Singh was the owner of 1/3rd share of the land mentioned in para no. 2 of the plaint? OPP.

3. Whether said Baggu Singh exchanged his land orally with RSA No.229 of 1986 4 Harnam Singh with the suit land, if so, its effect? OPP

4. Whether the suit is not within limitation? OPD

5. Whether the suit is bad for non-joinder of necessary parties? OPD

6. Relief. The parties have led their respective evidence on the aforesaid issues. After appraisal of the evidence, the learned trial Court dismissed the suit of the plaintiff vide judgment and decree dated 30.7.1984 passed by Shri Harbans Lal, Sub Judge Ist Class, Phul. Feeling dissatisfied with the judgment and decree 30.7.1984, plaintiffs preferred an appeal before the First Appellate Court. The said appeal was allowed by learned Additional District Judge, Bathinda vide judgment and decree dated 14.09.1985 and the suit of the plaintiff stood decreed. Feeling dissatisfied with the judgments and decree dated

14.09.1985, defendant-appellants have preferred the present regular second appeal before this Court. I have heard learned counsel for the parties and have gone through the records of the case. Learned counsel for the appellants has submitted that the judgment of the trial Court is based upon sound reasoning. The First Appellate Court has set aside the same on flimsy grounds. The case of the plaintiffs is that the suit property has been given them in exchange of the land situated in village Kalayan Malka and reliance has been placed on mutations Ex.P-5 and P-6. The said mutations have been set aside. The ground for acceptance of appeal by the First Appellate Court is relying RSA No.229 of 1986 5 upon the testimony of Arjan Singh defendant. The First Appellate Court has misread and misinterpreted the statement of Arjan Singh regarding exchange of land. In case the statement of Arjun Singh is read as a whole, in that eventuality, it would emerge that exchange was in respect of 78 kanals 18 marlas of land out of the total land measuring 107 kanals 9 marlas situated in village Maluka and the suit land remained with father of Arjun Singh. No exchange of any type was effected in respect of the suit land. The land measuring 78 kanals 18 marlas was given to the plaintiffs through a sale deed. The revenue record also shows the appellants as owners of the suit property. It is contended that following substantial question of law has arisen in the present appeal :-

1. Whether the First Appellate Court has misread and misinterpreted the statement of DW-1 Arjan Singh regarding exchange of land ? Learned counsel for the respondents has supported the judgment of First Appellate Court and has submitted that there is no error committed by the First Appellate Court. The argument addressed by the counsel for the appellants looks attractive but without any legal force. It is admitted case of the parties that land in village Maluka was measuring 107 kanals 9 marlas. The sale deed in respect of 78 kanals 18 marlas was executed in favour of the sons of the plaintiffs. The amount of sale consideration of Rs.9000/- has been passed in respect of that sale deed. The exchange was in respect of remaining 28 kanals 4 marlas. It cannot be said that in the exchange, land measuring 78 kanals 18 marlas was given through registered sale deed. The remaining land was given to the plaintiffs RSA No.229 of 1986 6 in respect of the land situated in village Malka. The land situated in village Kalyan Maluka and Sadda was given to the defendants. Mutations were also attested but the same were got set aside by the defendants. Once the defendants have got the land in another village, they are estopped from challenging the mutation of exchange. It is admitted by counsel for the appellants that land in village Kalyan Maluka and Sadda was received by the defendants but he could not narrate that he got the land other than the land exchanged. So, the exchange between the parties is valid one. There is nothing on the file to establish that First Appellate Court has misread and misinterpreted the testimony of Arjan Singh. Arjan Singh has categorically admitted the factum of exchange. So, in view of the above discussion, the substantial question of law raised above stands determined against the appellants. Consequently, the appeal is without any merit and the same stands dismissed. Decree sheet be prepared. A copy of this judgment be sent to the trial Court for strict compliance. August 05 , 2010 ( K.C.PURI ) JUDGE