RSA No.2650 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2650 of 2009 (O&M) Date of decision : 16-7-2009 Gurmail Singh and others ....Appellants VERSUS Gurdev Singh ....Respondent CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Gurdial Singh Jaswal, Advocate and Mr. Berjeshwar S. Jaswal, Advocate, for the appellants. RAJIVE BHALLA, J. CM No.7817-C of 2009 For the reasons stated in the application, delay in re- filing the appeal is condoned. CM No.7818-C of 2009 Heard. Allowed as prayed for. The name of Pritam Kaur w/o Badan Singh is deleted from the array of appellants. CM No.7819-C of 2009 Allowed as prayed for. Copy of the Exchange Agreement dated 31-07-1992 is taken on record. RSA No.2650 of 2009 (O&M) -2- CM No.7820-C of 2009 and RSA No.2650 of 2009 The appellants challenge the judgments and decrees dated 28-1-2006 and 27-2-2009, passed by the Additional Civil Judge, (Sr. Division), Samrala and Additional District Judge, Ludhiana dismissing their suit and their appeal. The plaintiff/appellants filed a suit for declaration that they are owners in possession of land measuring 15 kanals and 1 marla on the basis of an exchange deed dated 31-7-1992. The appellants allege that as parties are related to each other they agreed to exchange their land. The appellants and the respondent exchanged 15 Kanals and 1 marla of land each by way of an exchange deed dated 31-07-1992. A mutation was sanctioned on the basis of this exchange and possessions were exchanged. However, as the respondent denies the exchange a decree be passed declaring that the appellants as owners in possession of the suit land. The respondent contested the suit and also filed a counter claim for possession alleging that the exchange deed, dated 31-07-1992, is forged and fabricated and is even otherwise inadmissible in evidence for want of registration. It was further alleged that the appellants have taken illegal possession of the respondent's land and therefore possession be restored to him. After considering the pleadings and framing issues, the trial Court called upon parties to lead evidence. On the basis of the pleadings, the evidence adduced and the arguments addressed, the RSA No.2650 of 2009 (O&M) -3- trial Court dismissed the suit by holding that as the exchange took place by a written instrument, it could not pass any valid title to the appellants for want of registration. As a result the counter claim for possession was decreed. Aggrieved by the aforementioned judgment and decree, the appellants filed an appeal. The First Appellate Court dismissed the appeal and affirmed the findings recorded by the trial Court. Counsel for the appellants submits that the Courts below have failed to comprehend the difference between a deed of exchange and an agreement or a memorandum of exchange. The document Ex.P-1 is a memorandum of exchange or an agreement to exchange and therefore does not require registration. It is further submitted that as in the State of Punjab an oral exchange is permissible, the exchange deed could not have been rejected for want of registration. It is further argued that even if the exchange deed is held to be illegal, the appellants are entitled to protect their admitted possession under Section 53-A of the Transfer of Property Act. It is submitted that in view of the error committed by the Courts below, the impugned judgments and decrees be set aside. I have heard counsel for the appellants, perused the impugned judgments and decrees and the substantial questions of law framed by counsel for the appellants. It is true that an oral exchange is permissible in the State of Punjab. Where however the exchange is reduced into writing and the instrument of exchange reflects transfer of proprietory rights, in immoveable property, of RSA No.2650 of 2009 (O&M) -4- Rs.100/- or more, such an instrument would be required to be compulsorily registered. The argument that Ex.P1 is a memorandum of exchange is factually incorrect. A perusal of the true translation of the deed of exchange, appended as Annexure Ex.P-1 to the memorandum of appeal, shows that it records a transfer of proprietory rights in immoveable property in excess of Rs.100/-. The Courts below therefore, did not commit any error of law in holding that as the exchange deed was not registered it would not pass any valid title to the parties. The first two questions of law are therefore answered by holding that an oral exchange does not require registration but where the exchange is reduced into writing and the instrument of exchange reflects a transfer of proprietory rights, in immoveable property, in excess of Rs.100/-, such an exchange deed would be compulsorily registerable. The second question arises from an assertion that as the exchange has been incorporated in the revenue record it cannot be rejected for want of registration. The recording of a mutation would not confer legitimacy upon an instrument or confer title thereunder if the passing of title is statutorily impermissible. Similarly, the third question that Section 49 of the Registration Act protects the appellants' possession is entirely misplaced. Section 49 provides that a document required by Section 17 of the Registration Act to be registered shall not effect immoveable property unless it has been registered. It is therefore apparent that the unregistered exchange deed would not protect the petitioner's possession. The fifth question of law is entirely irrelevant as the question does not relate to the applicability of the Transfer of RSA No.2650 of 2009 (O&M) -5- Property Act but the lack of registration. The argument that the appellants' possession should be protected under Section 53-A of the Transfer of Property Act disregards the fact that non-registration of the exchange deed does not pass any title whether possessory or proprietory, and therefore does not merit acceptance. The sixth and seventh questions of law also must fail as the exchange deed Ex.P-1 is unregistered, there is no question of estoppel against or ouster of the provisions of the Registration Act. The eighth and ninth questions of law are vague and, therefore, do not merit consideration. As no question of law much less a substantial question of law, arises for consideration, the appeal is dismissed. (RAJIVE BHALLA) 16-07-2009 JUDGE manju