Delhi High Court
Sh. Sukhbir Singh vs Mr. Sh. Roop Chand & Ors. on 28 March, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 84/2014
% 28th March, 2014
SH. SUKHBIR SINGH ...... Appellant
Through: Mr. M.K.Singh, Advocate.
VERSUS
MR. SH. ROOP CHAND & ORS. ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This second appeal is filed by the appellant-plaintiff against the
judgment of the first appellate court dated 19.12.2013 by which the first
appellate court dismissed the appeal filed by the appellant against the
judgment of the trial court dated 17.9.2012. By the impugned judgments of
the courts below, two suits of the appellant-plaintiff being suit nos. 18/09/06
and 312/2008 were dismissed. Dispute between the parties,
appellant/plaintiff & respondent nos.2 & 3 herein (defendants in suit
no.18/2009/2006), pertain to an area of 5 biswas i.e about 250 sq. yds
forming part of K.No. 49/41, Village Rani Khera, Delhi.
RSA 84/2014 Page 1 of 6
2(i) The case as put forth by the appellant-plaintiff was that he is the
owner of a total of 8 biswas of land situated in K.No. 49/41, Village Rani
Khera, Delhi. It was pleaded that appellant-plaintiff was the owner in
possession of H.No. 68 falling in K.No. 49/41 having a total area of 8 biswas
and which land in the extended abadi originally having an area of 18 biswas
was allotted to him in lieu of his agricultural land during consolidation
proceedings in the year 1952-53. In the year 1962, appellant-plaintiff
claimed that he had exchanged 10 biswas of his land falling in the extended
Lal Dora with 10 biswas of land of the defendant nos.2 and 3/respondent
nos.2 and 3 falling in the old Lal Dora in terms of a verbal agreement. It
was further pleaded that after the exchange appellant-plaintiff, after giving
10 biswas out of 18 biswas, was left with only 8 biswas of land in the
extended abadi. Out of 8 biswas of land, on 3 biswas of land,
appellant/plaintiff constructed a house and the remaining 5 biswas of land
was kept vacant by him for tying cattle etc. Appellant claimed that
defendants/respondents have tried to caste a cloud upon this 5 biswas of his
land and are trying to encroach upon the same although the appellant-
plaintiff is the owner of the same since the year 1952-53. Appellant-plaintiff
claimed to be in possession of the suit land shown in red colour in the site
RSA 84/2014 Page 2 of 6
plan filed with the plaint and claimed injunction against the defendants from
illegally encroaching upon the land of 5 biswas falling in K.No. 49/41.
(ii) Defendants in the suit no.18/2009/2006 and respondent nos.2 & 3
herein filed their written statements and stated that plaintiff had no locus
standi to file the suit because there was a written exchange deed registered
with the sub-Registrar vide document no. 3164, register no.I/215 page 83-88
dated 29.8.1962 as per which the respondent nos.1 & 2 are the owners of 15
biswas of land out of 18 biswas which originally belonged to plaintiff and
his ancestors. This exchange deed was executed by the grandfather of the
appellant-plaintiff and whereby the property has been exchanged with the
property of the defendants. Exchange took place of 15 biswas of land in
extended abadi with 10 biswas of land of respondent nos.1 & 2 in old Lal
Dora, and these lands having different areas were taken of equal value, as
found in old Lal Dora was more valuable than the land in extended abadi.
Respondent nos.2 & 3 pleaded that plaintiff was not the owner of the 8
biswas of land falling in K.No. 49/41, but, he was the owner of only 3
biswas of land out of total area of the land of 18 biswas, after exchange of
15 biswas by Sh. Roop Chand (respondent no.1 herein & sole defendant in
suit no.312/2008), grandfather of the plaintiff, with land of other persons
including defendants. Respondent nos.1and 2 also denied that plaintiff
RSA 84/2014 Page 3 of 6
allegedly exchanged 10 biswas of his land in the extended Lal Dora with 10
biswas of the respondent nos. 2 and 3 falling in Lal Dora as per an alleged
verbal agreement/settlement.
3. The main issue between the parties was as to whether or not there was
an exchange deed dated 29.8.1962 which was relied upon by the
defendants/respondents no.2 and 3.
4. Respondent nos. 2 and 3 filed and proved before the trial court, the
exchange deed Ex.DW1/1, to show that, after the exchange the forefathers of
the plaintiff and also the plaintiff had lost any rights in the suit land, being 5
biswas out of the total of 15 biswas, because, respondent nos. 2 and 3 had
got the total land of 15 biswas in exchange for an area of 10 biswas in the
old Lal Dora of the village. The courts below have also disbelieved the case
of the appellant-plaintiff on the ground that the verbal settlement as claimed
by the appellant-plaintiff could not be proved by him.
5. A second appeal lies under Section 100 CPC only if there is a
substantial question of law and no such question arises once the respondent
nos. 2 and 3 proved the exchange deed as Ex DW1/1, and which is a
registered document and hence consequently and obviously the plaintiff is
proved not to have any right in the suit land of 5 biswas forming part of 15
RSA 84/2014 Page 4 of 6
biswas of land, and which 15 biswas of land belongs to respondents no.2 and
3 under the exchange deed Ex.DW1/1.
6. Learned counsel for the appellant argued that the exchange deed Ex.
DW1/1 cannot be said to be validly proved before the trial court as the
document was not properly exhibited in accordance with law. However,
when the counsel for the appellant was put a query as to whether any
objection was raised at the time of exhibition of the exchange deed
Ex.DW1/1, it is conceded that at such time, during the course of leading of
evidence, no objection was raised. If that be so, appellant-plaintiff is
deemed to have waived his objection to the exhibition and proof of the
document, and as held by the Supreme Court in the case of R.V.E.
Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P.Temple and
Anr. AIR 2003 SC 4548. This argument urged on behalf of the appellant-
plaintiff is therefore rejected.
7. Counsel for the appellant also contended that it was the respondent
nos. 2 and 3 who had to prove registration of the exchange deed, but that
cannot be said to have been done as no one was called from the office of the
sub-Registrar to prove the exchange deed. Even this argument urged on
behalf of the appellant-plaintiff is misconceived because as per Section 57 of
the Evidence Act, 1872 courts have to take judicial notice of official seals.
RSA 84/2014 Page 5 of 6
Once the exchange deed is shown on its face to have been registered, the
onus shifted upon the appellant to show that the exchange deed was not
registered, and which in my opinion was not at all difficult for the appellant-
plaintiff to do because either a certificate could have been obtained from the
sub-Registrar that no such exchange deed dated 29.8.1962 existed in the
record of the sub-Registrar or the record itself could have been summoned to
show that no exchange deed was registered at document no.3164 register no.
215 page 83 to 88, but admittedly the appellant-plaintiff did not do so.
Therefore, this argument urged on behalf of the appellant is also therefore
rejected.
8. In view of the above, I do not find any merit in the appeal, and the
same is therefore dismissed, leaving the parties to bear their own costs.
MARCH 28, 2014 VALMIKI J. MEHTA, J.
ib
