Bachan Singh And Anr vs Baljinder Kaur And Anr
2022 Latest Caselaw 17290 P&H

                            RSA No.4948 of 2017                                                           -1-

                             IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                            101-1                                   RSA No.4948 of 2017 (O&M)
                                                                    Reserved on : 12.12.2022
                                                                    Date of Decision : 20.12.2022

                            Bachan Singh and Another                                          ....Appellants

                                                               VERSUS

                            Baljinder Kaur and Another                                      ....Respondents

                            CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                            Present :     Mr. Siddharth Gupta, Advocate for the appellants.

                                          Mr. D.S. Virk, Advocate for the caveator/respondents.

                            ALKA SARIN, J.

The present regular second appeal has been preferred by the

defendant-appellants against the judgments and decrees passed by both the

Courts below decreeing the suit for permanent injunction filed by the

plaintiff-respondents.

The brief facts relevant to the present lis are that the plaintiff-

respondents filed a suit for permanent injunction to the effect that they are

joint owners in possession of the land measuring 7 marlas comprising in

khewat no.663/664, khatauni no.1115, khasra no.224/18/3 (0-7), as per

jamabandi for the year 2009-10, situated in the area of Phull-IInd, Tehsil

Phul, District Bathinda, and that the defendant-appellants have no right, title

or interest in the suit property and that they be restrained from interfering

into the peaceful possession of the plaintiff-respondents. The suit was

contested by the defendant-appellants and they claimed to be owners in

possession of the suit property on the basis of exchange deed dated

19.03.1997.

On the basis of pleadings of the parties, the following issues JITENDER KUMAR 2022.12.20 14:36 I attest to the accuracy and were framed :

integrity of this order/judgment.

Chandigarh

1. Whether the plaintiffs are entitled to the relief of

permanent injunction as prayed for ? OPP

2. Whether the suit of the plaintiffs is not

maintainable in the present form ? OPD

3. Whether the plaintiffs have no cause of action to

file the present suit ? OPD

4. Whether the plaintiffs have concealed the material

facts from the court ? OPD

5. Whether the plaintiffs have not come to the court

with clean hands ? OPD

6. Whether the plaintiffs have no locus standi to file

the present suit ? OPD

7. Whether the plaintiffs are estopped from filing the

present suit by their own act and conduct ? OPD

8. Whether the suit has been filed by the plaintiffs

only to harass the defendant ? OPD

9. Relief.

The Trial Court on the basis of pleadings of the parties and the

evidence on the record held that the plaintiff-respondents have been able to

prove their possession over the suit property on the basis of jamabandi for

the year 2009-10 in which it finds mentioned that the plaintiff-respondents

were Mushtarian Kashat Mushtarian meaning thereby that the plaintiff-

respondents were purchasers in cultivating possession and there was a

separate khatauni of the plaintiff-respondents i.e. khatauni no.1115. The

Trial Court decreed the suit vide judgment and decree dated 23.12.2016.

Aggrieved by the same, the defendant-appellants preferred an appeal. The JITENDER KUMAR 2022.12.20 14:36 I attest to the accuracy and lower Appellate Court held that the exchange deed upon which the integrity of this order/judgment.

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defendant-appellants were relying upon could not be looked into being an

unregistered document having been reduced into writing. The appeal was

dismissed vide judgement and decree dated 01.07.2017. Aggrieved by the

said judgments and decrees of both the Courts below, the present regular

second appeal has been preferred by the defendant-appellants.

Learned counsel for the defendant-appellants would contend

that the defendant-appellant no.1 had produced on record the electricity bills

as Ex.D2 to Ex. D6 which have been ignored. It is further the contention that

on the basis of the exchange deed the defendant-appellants were in

possession of the suit property which is also apparent from the electricity

bills (Ex.D2 to Ex. D6).

I have heard learned counsel for the parties.

In the present case the plaintiff-respondents came to Court

claiming themselves to be owners in possession of the suit property on the

basis of the revenue record. Both the Courts below held them to be owners

in possession. The claim of the defendant-appellants that they were owners

in possession on the basis of an exchange deed stood rejected.

In case of Subodh Chand Nayyar vs. Veena @ Dr. Vinod

Veena [2011 (6) RCR (Civil) 367] it was held as under :

"8. In view of the aforesaid situation, letter Annexure

A/1 does not help the defendant. Firstly, this letter is

per-se doubtful because it is addressed to defendant's

father but the envelope Annexure A/2 is addressed to the

defendant himself. Secondly, this letter does not speak of

any exchange as pleaded by the defendant. On the other

hand, according to this letter defendant's father had got JITENDER KUMAR 2022.12.20 14:36 I attest to the accuracy and adjusted amount of Rs.5800/- out of his claim amount integrity of this order/judgment.

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towards price of the house at Jalandhar. Plaintiff's

father stated in this letter that he had not given anything

in lieu of the said amount of Rs.5800/- to the defendant's

father. Consequently, the plaintiff's father stated in this

letter that through the letter he was declaring the

defendant's father to be owner in possession of the suit

house at Karnal. This letter is un-dated but according to

the defendant's version alleged exchange take place in

the year 1985-86. However, there could be no such

exchange in the year 1985-86 when plaintiff's father

had already become exclusive owner of the house at

Jalandhar in April, 1960. This letter also does not speak

of any exchange of the suit house in lieu of alleged share

of defendant's father's share in the Jalandhar house. On

the other hand, this letter simply states that in lieu of

amount of Rs.5800/- which the defendant's father had

got adjusted out of his claim amount in the year 1960,

plaintiff's father was declaring defendant's father to be

owner in possession of the suit house. It would clearly

mean that the plaintiff's father was allegedly selling suit

house to defendant's father for consideration of

Rs.5800/- which had been paid by the defendant's father

out of his claim in April, 1960. However, no such sale

could take place without registered deed. Moreover,

even if this letter is taken to be document of exchange,

even then it required compulsory registration JITENDER KUMAR 2022.12.20 14:36 I attest to the accuracy and notwithstanding that oral exchange with exchange of integrity of this order/judgment.

Chandigarh

possession could legally take place. However, when

there is document of exchange then it requires

compulsory registration."

This Court in Pritam Singh & Ors. vs. Mohinder Singh & Ors. [2008 (16)

RCR (Civil) 94] held as under :

"7. The document of partition Ex.P1 dated 2.6.1971 is

totally silent about the details of Khasra numbers of the

land having been partitioned and exchanged by the

predecessor in interest of the plaintiffs and the

defendants. I am in total agreement with the counsel for

the respondents that if khasra numbers are not

mentioned in the document Ex.P1, it becomes a void

contract being uncertain. In this regard, reliance can be

placed on a decision of this Court in Mr. Dharam Pal

Mohinder Nath v. Nirmal Singh, 19992 (122) PLR

744. Moreover, if it is a case of exchange then it is

regulated by the provisions of Section 118 of the

Transfer of Property Act, 1872 (for short the Act) which

defines the exchange as under :

"When two persons mutually transfer the

ownership of one thing for the ownership of

another, neither thing or both things being money

only, the transaction is called an 'exchange'. A

transfer of property in completion of an exchange

can be made only in manner provided for the

transfer of such property by sale."

JITENDER KUMAR 2022.12.20 14:36 I attest to the accuracy and integrity of this order/judgment.

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8. Oral exchange in the States of Punjab and

Haryana is permissible but if it is reduced into writing,

it requires stamp duty and registration as held by this

Court in the case of Shiv Ram v. Smt. Bimla Devi, 2000-

2 (125) PLR 799. Further more, in the case of Satyawan

v. Raghbir, 2002-2 (131) PLR 467, it was held that oral

exchange of immovable property of more than Rs.100/-

requires registration. Since the document Ex.P1 is

uncertain and vague and coupled with the fact that it is

not entered in the revenue record and is unregistered,

the same is unreliable and no relief can be granted to

the plaintiffs on the basis of said document."

In case of Shiv Ram vs. Smt. Bimla Devi [2000(2) RCR (Civil) 471] this

Court held as under :

"10. There is hardly any illegality and impropriety in

the impugned judgment and decree, still the learned

counsel for the appellant submitted that the decree

dated 18.7.1985 is null and void and is not binding upon

the rights of the plaintiff. According to the plaintiff, the

said decree was a sale. There was no exchange at all

and the same could only be effected by a regular deed of

transfer, which has not been done in this case and in

this view of the matter the decree dated 18.7.1985 does

not convey any right, title and interest in the defendants.

The argument is misplaced. The perusal of the impugned

decree show that when the suit was instituted against the JITENDER KUMAR 2022.12.20 14:36 I attest to the accuracy and plaintiff, the plaintiff made a statement voluntarily on integrity of this order/judgment.

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15.6.1984 and admitted the claim of the defendant in

that suit. The said decree could only be challenged by

the plaintiff on the ground of fraud or undue influence.

It has not been established on the record that the earlier

written statement filed by the plaintiff in the earlier suit

did not bear his signatures. The possession of a large

area which was mortgaged with possession with the

defendants was returned to the plaintiff and a small area

of the land was taken in exchange by the defendants. In

Punjab or Haryana there can be an oral exchange and

no document is required to be written. If it is written, it

requires stamp and registration. We all know that a

mortgage with possession can be redeemed by the

mortgagor within 30 years from the date of mortgage.

Mortgage is a transfer of interest in the immovable

property. A mortgagee gets interest in a mortgaged

property by virtue of mortgage deed. Thus if that

interest is exchanged in lieu of an area, it will amount to

an exchange. In such a situation, it can be said that a

mortgagee has an existing interest in the area which has

been surrendered in favour of the mortgagor and in lieu

of that interest, which is an immovable property in the

eyes of law, if the mortgagee gets some land, it is an

oral exchange and such an exchange would not require

stamp or registration. The said decree could only be

challenged within three years but the present suit has JITENDER KUMAR 2022.12.20 14:36 I attest to the accuracy and not been instituted within a span of three years." integrity of this order/judgment.

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In the present case admittedly the exchange deed being sought

to be relied upon by the defendant-appellants is an unregistered and

unstamped document and hence cannot be looked into in evidence. Learned

counsel for the defendant-appellants has not been able to show any contrary

revenue record on the record to depict possession of the defendant-

appellants on the suit property. Entries contained in the jamabandi which

remain un-rebutted carry a presumption of truth as per Section 44 of the

Punjab Land Revenue Act, 1887. Further, learned counsel has not been able

to convince this Court that they were owners in possession of the suit

property only on the basis of certain old electricity bills (Ex.D2 to Ex.D6).

In view of the above and the law laid down, I do not find any

illegality or infirmity in the judgments and decrees passed by both the

Courts below. No question of law, much less substantial question of law,

arises in the present appeal, which is wholly devoid of any merits and is

accordingly dismissed. Pending applications, if any, also stand disposed off.

Dismissed.

                                                                                        ( ALKA SARIN )
                            20.12.2022                                                      JUDGE
                            jk

NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

JITENDER KUMAR 2022.12.20 14:36 I attest to the accuracy and integrity of this order/judgment.

Chandigarh