Jaswant Singh v. Chamkaur Singh

This is plaintiff's (appellant herein) second appeal challenging the judgments and decrees of the Courts below whereby his suit for declaration and permanent injunction to the effect that he was the owner in possession of the suit land measuring 8 Kanals comprised in Khasra No.73//3(8-0) as per agreement and exchange deed dated

18.5.2000 and the defendant-respondent has no concern with the same as plaintiff had executed sale deed regarding land measuring 3 Kanals in Khasra No.49// 4/2min (0-4), 5/1 (1-3), 7/2/1(1-13) on 18.05.2000 consequential relief of permanent injunction restraining the respondent from taking forcible possession of the suit land or alienating the same, has been dismissed. In brief, as per the averments made by the plaintiff- appellant in the plaint, the parties were co-sharer and the suit land was not partitioned. The defendant-respondent gave the suit land measuring 8 Kanals as detailed in the plaint to the plaintiff-appellant in exchange of land RSA No.213 of 2010 (O & M) ::2:: measuring 3 Kanals comprised in Rectangle and Killa No.49//4/2min (0-4), 5/1(1-3), 7/2/1(1-13) situated in area of Maankhera and since then the plaintiff-appellant was in possession of the suit land. The plaintiff-appellant executed a registered sale deed dated 18.5.2000 regarding the sale of land measuring 3 Kanals in favour of the defendant-respondent in the said exchange. The defendant-respondent executed a writing dated 18.05.2000 regarding exchange with his own free will in the presence of the witnesses and appended his signatures after admitting the same to be correct. It was further asserted that the sale deed was executed in favour of the defendant-respondent by the plaintiff-appellant in terms of the said exchange deed and the respondent had no concern with the suit land comprised in Rectangle and Killa No.73// 3(8.0), and thus, the plaintiff was entitled to decree as prayed. Upon notice, the respondent appeared and contested the suit, raising various preliminary objections. On merits, it was submitted that he never gave the suit land measuring 8 Kanals comprised in Rectangle and Killa No.73// 3(8.0) to the plaintiff-appellant in exchange and he did not receive land measuring 3 Kanals in exchange rather he had purchased it from the plaintiff-appellant vide registered sale deed dated

18.05.2000 for consideration and since then he was in possession of the suit land. The plaintiff-appellant was not in possession of the suit land measuring 8 Kanals in any capacity. The alleged writing regarding exchange was a result of fraud and fabrication and the same was not binding, being not registered and dismissed the suit as prayed for. After going through the evidence and hearing the learned counsel for the parties, the learned Trial Court dismissed the suit. The plaintiff-appellant filed an appeal before the learned Lower Appellate Court, which was also dismissed. While dismissing the appeal, the learned Lower RSA No.213 of 2010 (O & M) ::3:: Appellate Court observed as under:- “8. I have carefully gone through the record and also heard learned counsel for the parties. The plaintiff is claiming ownership of the land comprised in rectangle and Killa No.73// 13(8-0) situated at village Mannkhera on the basis of agreement/exchange deed dated 18.5.2000 Ex.P1. Firstly, this exchange is unregistered. Learned trial court has rightly observed that oral exchange is permissible in Punjab but when it is reduced into writing it requires registration. It is not disputed that the value of the land is more than Rs.100/-. Section 118 of the Transfer of Property Act provides that the transfer of property in completion of an exchange can be made only in a manner provide for transfer of said property by sale. As per section 54 of the Transfer of Property Act, sale of immoveable property of the value of amount of Rs.100/- or more can only be effected by registered deed. So the exchange deed Ex.P1 is not admissible in evidence to prove the titled of the plaintiff to the land in dispute. Further according to the plaintiff in exchange, plaintiff executed sale deed regarding land measuring 3 Kanals comprised in rectangle and Killa No.49// 7(1-13) 5(1-7). According to the defendant, he purchased above said 3 Kanals of land from the plaintiff for value of consideration and it was not given to him in exchange Ex.D1 is RSA No.213 of 2010 (O & M) ::4:: sale deed dated 18.5.2000. Vide this sale deed, the defendant purchased the above said 3 Kanal of land from the plaintiff for a consideration of Rs.57000/-. In case, the defendant has given 8 Kanals of land in question to the plaintiff in exchange, then this fact should have been mentioned in the sale deed Ex. D1 and further in that event the plaintiff would have got registered the exchange deed. Further in exchange deed Ex.P1, it is mentioned that the plaintiff is executing deed regarding land comprised in rectangle and Killa No.49// 7(1-13) 5(1-7). On the other hand, sale deed Ex.P1 is regarding land comprised in rectangle and Killa No.4/2(0-4) 5/1(1-3) and 7/2/2(1-13). There is no mention of land comprised in Killa No.4/2(0-4) in the exchange deed Ex.P1. the alleged exchange was never reported to the revenue authorities nor given effect to the revenue record. So the above said exchange is not proved to have been acted upon between the parties. Copy of jamabandi for the year 2000-2001 is on lower court file and in this jamabandi, defendant Chamkaur Singh and Surjit Kaur are recorded in possession of land comprised in 73// 3(8-0) alleged to have been received by the plaintiff in exchange. Similarly, in Khasra Girdawari, the entries are in favour of Chamakaur Singh and Surjit Kaur, co-sharers. In case, the plaintiff had received land comprised in RSA No.213 of 2010 (O & M) ::5:: rectangle and Killa No.73// 3(8-0) in exchange in the year 2000 then the entries in the revenue record should have been in his favour and he should have been recorded in possession of the land alleged to have been received by him in exchange. So in the above circumstances, learned trial court has rightly held that the plaintiff has failed to prove that defendant gave the land comprised in rectangle and Killa No.73// 3(8-0) to him in exchange. The findings of learned trial court on all the issues are correct and hereby affirmed.” Still not satisfied, the present appeal has been filed by the plaintiff-appellant before this Court challenging the judgments and decrees of the Courts below. The learned counsel appearing on behalf of the appellant has vehemently argued that the writing dated 18.5.2000 regarding exchange of land stands proved according to law and therefore, the findings of the Courts below are liable to be set aside. On the basis of the aforesaid argument, learned counsel for the appellant submitted that the following substantial questions of law arise in this appeal:- (1) Whether a writing regarding exchange between the co-sharers is required to be registered ? (ii) Whether an agreement that has been acted upon could be resiled and challenged in a court of law. I have heard the learned counsel for the appellant and perused the impugned judgments and decrees of the Courts below. The case of the appellant is based upon exchange deed Ex.P-1 dated

18.05.2000 according to which the defendant-respondent agreed to RSA No.213 of 2010 (O & M) ::6:: exchange the suit land. Admittedly, the aforesaid exchange deed has not been registered under the provisions of the Indian Registration Act, 1908. It is well settled that the sale of immovable property of the value of amount of Rs.100/- or more can only be effected by a registered deed. Thus, the exchange deed Ex.P-1 was not admissible in evidence to prove the title of the plaintiff-appellant of the land in dispute. There is no other evidence on record, on the basis of which, it could be held that the land in dispute was exchanged. In view of the aforesaid, no fault can be found with the findings recorded by the Courts below. No question of law, much less substantial, as argued, arises in this appeal. No merits. Dismissed. CM No.702-C of 2010 Since the appeal has been dismissed on merits, the application for condonation of delay does not survive. July 13, 2010 Sukhpreet (RAKESH KUMAR GARG) JUDGE