IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 36 of 2001. Reserved on : 11.3.2010. Decided on : 19.5.2010. __________________________________________________________ Smt. Bimla Devi and others … Appellants. Versus Shri Parkash and another … Respondents. _________________________________________________________ Coram Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellants : Mr. Dushyant Dadwal, Advocate. For the respondents : Mr. H.K. Paul, Advocate. __________________________________________________________ V.K. Sharma, Judge. Both the appellant, Shri Roshan Lal and respondent, Shri Panjku Ram herein, who were plaintiff and defendant, respectively, before the learned trial Court and shall hereinafter be referred to as such, died during pendency of the appeal before this Court and are represented by their legal representatives (L.Rs.), Smt. Bimla Devi and others and Shri Parkash and another, respectively. 2. This appeal by the plaintiff through L.Rs. is against the judgment and decree, dated 23.11.2000, of the learned District Judge, Mandi, H.P., whereby the appeal filed by the defendant was accepted and the suit for grant of a decree for declaration with consequential relief of perpetual prohibitory injunction filed by the plaintiff was dismissed with costs throughout. 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. 2 3. Briefly stated the dispute between the parties concerns the land comprised of Khewat/Khatauni No. 7/9, Khasra No. 90, measuring 0-03-31 hectare, situate in village Rihri, illaqua Hatli, Sub Tehsil Baldwara, District Mandi, H.P (the suit land). The plaintiff averred that the suit land was exchanged between the parties on 8.1.1993. Whereas, the suit land was given by the defendant to the plaintiff, the latter gave land measuring 0-03-48 hectare denoted by khasra No. 107/1, forming part of the land comprised in Khewat/Khatauni No. 34/38/39 min, Khasra No. 107, situate in the aforesaid village, to the former by way of exchange. Thereafter, the parties are owners in possession of the respective lands. In order to establish the exchange, the plaintiff relied upon Rapat Rojnamcha (daily diary report), dated 8.1.1983 and attached a copy thereof with the plaint. The plaintiff further averred that in the year 1983, he constructed a house, Gobar Gas plant, kitchen and khalwara and raised orchard on a part of the suit land and the remainder is being used by him as courtyard. After exchange the plaintiff is in ‘peaceful, hostile, naked and uninterrupted’ possession of the suit land. It was lastly averred that on 18.12.1990, the defendant started causing unlawful and unwarranted interference with the suit land by destroying the orchard and the potato crop as also by planning to raise construction on a part thereof for which he had collected stones and other material without any right, title and interest, compelling the plaintiff to file the suit. 3 4. The defendant contested the suit on legal objections regarding maintainability, cause of action and limitation. On merits, while admitting the description of the suit land, the defendant laid claim to the same as owner in possession. It was emphatically denied that any such exchange as alleged by the plaintiff ever took place and the daily diary report (DDR) is false and has been entered at the instance of the plaintiff without the knowledge of the defendant, who had been working as labourer at Rampur since 1967 and Amritsar till 1987. It was further averred as under, vide paras 3 to 5 of the written statement that: “It is submitted that the house in question was forcibly constructed by the plaintiff over the land in the absence of the defendant about 3-4 years back and when the defendant came back to his house the plaintiff agree to give land to the defendant 4 times equal to the land which he has occupied under the house. But later on did not give 4 time equal land to the defendant and went on lingering the matter for two years and the rest of the land is in possession of the defendant and the construction forcibly raised by the plaintiff over the suit land without the permission of the defendant is liable to be dismantled and the defendant is filing separate suit for vacant possession of the land after demolition of the house. The plea raised by the plaintiff is self contradictory, hence liable to be rejected. There is no question of hostile possession in the present case. That under the garb of wrong report which was made at the instance of the plaintiff with the collusion and connivance of the Patwari the plaintiff wanted to occupy the entire suit land forcibly but the defendant did not allow him to take forcibly possession of the suit land excluding the house.” 4 5. The plaintiff filed replication refuting the case pleaded by the defendant and reiterating his own case as set up in the plaint. 6. On the above pleadings, the parties went to trial on the following issues:- 1. Whether the land comprised in khewat khatauni No. 7/9, khasra No. 90, measuring 0-03-91 hectares was given in exchange of the suit land comprised in khewat/khatauni No.107/1 measuring 0-03-48 hectares by the defendant to the plaintiff, as alleged? OPP. 2. Whether the land comprised in khasra No. 107/1 has been in possession of the defendant ever since the exchange, as alleged? OPP. 3. Whether part of the suit land comprised in khewat khatauni No. 7/9 khasra No. 90 measuring 0-03-31 hectares except the land covered under the house of the plaintiff is in the possession of the defendant, as alleged? OPD. 4. Whether the suit is not maintainable? OPD. 5. Whether the plaintiff has no enforceable cause of action, as alleged? OPD. 6. Whether the suit is barred by time, as alleged? OPD. 7. Relief. 7. Whereas, issues No. 1 and 2 were held in affirmative, the remaining issues were decided in negative. The suit of the plaintiff came to be admitted on these findings. 8. Being aggrieved, the defendant carried the matter in appeal to the District Court, which allowed the appeal and dismissed the suit, as already observed. 9. The appeal was admitted on the following substantial questions of law:- 5 1. Whether the learned court below was right in holding that a mutual exchange of land under Section 118 of the Transfer of Property Act requires compulsory registration when both the parties are put in respective possession and principle of part performance is attracted? 2. Whether the judgment of the learned court below can be sustained when it is based on conjectures and guess work to over-ride established documentary evidence?. 10. I have heard the learned counsel for the parties and perused the record. 11. Whereas, the impugned judgment and decree, dated 23.11.2000, have been assailed by the plaintiff within the ambit of the above substantial questions of law, which shall be discussed hereinafter, the defendant has supported the findings returned by the learned trial court. 12. For the sake of convenience the aforesaid substantial questions of law shall be taken up for discussion and disposal one by one. Substantial Question of Law No.1: Whether the learned court below was right in holding that a mutual exchange of land under Section 118 of the Transfer of Property Act requires compulsory registration when both the parties are put in respective possession and principle of part performance is attracted? 13. On the face of it, this question is neither based on facts/record nor on law. It being so, it cannot at all be said to be a question of law, what to say of substantial question of law. The 6 reasons for arriving at this conclusion at the very outset are enumerated hereinafter. 14. The question as framed comprises of two parts, firstly with regard to compulsory registration of exchange of land set up by the plaintiff and secondly relating to the principle of part performance under Section 53-A of the Transfer of Property Act (TPA). 15. A bare perusal of the impugned judgment, dated 23.11.2000, of the learned Court below, that is, the First Appellate Court, would go to show that it has not held that the exchange under reference was compulsorily registerable and rather its findings are to the contrary as is apparent from the relevant part of para 19 of the judgment, which is to the following effect: “Having considered the rival contentions raised at the hearing of this appeal in the light of the case law cited and in view of the facts and circumstances of the case emerging from the record as well as pleadings of the parties, I am afraid to lend countenance to the findings recorded by the lower Court and the contentions raised on behalf of the respondent. Since the provisions of section 54, 107 and 123 of the Transfer of Property Act were made applicable in Himachal Pradesh through letter dated 6.1.1971 of the Deputy Secretary (Rev.) to the Government of Himachal Pradesh, it is not correct to say that the oral transaction of exchange without registration of a document is not valid. Accordingly, the view taken by the Orissa High Court in the case of Annapurna Dei (supra) is of no use to the appellant. In view of the provision laid down in Section 35 of the Himachal Pradesh Land 7 Revenue Act, the Patwari concerned was competent to make entry in the Rojnamcha kept by him in the discharge of his official duty in the context of the alleged oral transaction of exchange.” 16. In so far as the second part of the substantial question of law No.1 as framed qua principle of part performance embodied under Section 53-A of Transfer of Property Act is concerned, I have no hesitation to say that the said principle is not at all applicable in the facts and circumstances of the present case for the reasons that though DDR Ext. PW-5/A, dated 8.1.1983, on which the plaintiff has based his suit cannot be strictly stated to be a ‘writing signed by him or on his behalf’ in the strict sense of the terminology employed in Section 53-A ibid, which is reproduced below, yet even if it is taken to be so, the fact would remain that he cannot be said to be ‘the transferor or any person claiming under him’ referred to in the said section. In other words, the doctrine of part performance normally comes into play where ‘the transferee has performed or is willing to perform his part of the contract’, whose status in the suit is normally that of a defendant, which is not the fact situation in the present case. “53-A. Part performance. Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, And the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the 8 contract and has done some act in furtherance of the contract, And the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.” 17. For the reasons stated hereinabove, the substantial question of law No.1 as framed is answered in the above terms. Substantial Question of Law No.2: Whether the judgment of the learned court below can be sustained when it is based on conjectures and guess work to over-ride established documentary evidence?. 18. The inescapable conclusion emerging on appraisal of the evidence on record is that this question is bound to be answered in negative for the reasons to be stated hereinafter. 19. Once the learned Court below had held that the exchange of land between the parties, vide DDR Ext. PW-5/A, dated 8.1.1983, was valid and the concerned Patwari was competent to make entry in the Rojnamcha kept by him in discharge of his duty under Section 35 of the Himachal Pradesh Land Revenue Act and rightly so as held by this Court in Bhagat 9 Ram versus Atma Ram and others, 2000 (1) S.L.C. 185 and Braham Raj Singh versus Braham Raj Devi and ors., 1981 S.L.J. (Himachal Pradesh) 326, respectively, the further inference derived by it that since DDR Ext. PW-5/A, dated 8.1.1983, was not followed by a mutation, it would not have any legal effect, is absolutely flawed for the reason that mutation does not confer any title which aspect of the matter has though been noticed by the learned Court below correctly, but has been wrongly applied in a manner not warranted under law. 20. The plea in defence raised by the defendant, as already noticed, while stating brief facts of the case is on the face of it and coupled with other evidence on record just a make believe story. It is apparent that once he had agreed to exchange the suit land with the land measuring 0-03-48 hectares denoted by Khasra No. 107/1, vide DDR Ext. PW-5/A, proved in evidence by PW-5 Daya Ram Thakur, who at the relevant time was the concerned Patwari, it does not lie in his mouth to say that the plaintiff forcibly raised construction of his house over a part of the suit land in his absence and later on he agreed to give four times land equal to the land occupied by him for construction of the house, but later on resiled from such assurance/undertaking. 21. The factum of exchange between the parties, vide DDR Ext. PW-5/A, dated 8.1.1983, and their entering into possession of the respective lands is duly proved by way of evidence led by the plaintiff comprising of his own deposition as PW-1 and that of PW-2 Narainu and PW-3 Nathu Ram. 10 22. PW-5 Daya Ram Thakur, Patwari has proved DDR Ext. PW-5/A, dated 8.1.1983. No motive or mala fides have been alleged against him. It being so, it can be safely concluded that he being an official witness, must have carried out the official act in entering DDR Ext. PW-5/A, dated 8.1.1983, in discharge of his duties. A combined and harmonious reading of his deposition would go to show that there is no reason to disbelieve him that both the plaintiff and defendant had gone to him on 8.1.1983 and had got DDR Ext. PW-5/A entered, thereby exchanging the respective lands between them. 23. Even DW-2 Nand Lal, who was examined by the defendant, has categorically admitted during cross-examination that the plaintiff has constructed a house, kitchen and Gobar Gas Plant, besides planting a small orchard in the land given in exchange to him by the defendant. He has further categorically stated that the defendant is in possession of the land given in exchange to him by the plaintiff. It shall be pertinent to notice that by adducing additional evidence during pendency of the appeal before the First Appellate Court, the plaintiff has brought on record Aks Tatima Ext. CA to identify the land comprised in Khasra No. 107/1 measuring 0-03-48 hectares, which was given by him in exchange to the defendant. 24. A perusal of the statement of DW-2 Nand Lal further goes to show that before conclusion of his deposition, a Court question was put to him by the learned trial Judge as to whether there had been exchange between the parties, which he had replied in affirmative. This clinches the entire controversy. 11 25. Substantial question of law No. 2 is also answered in the above terms. 26. In view of the above, the impugned judgment and decree, dated 23.11.2000, cannot be sustained and are accordingly reversed and those of the trial Court, dated 2.3.1996 are restored. Consequently, the suit of the plaintiff shall stand decreed. 27. In the result, the appeal is allowed in the above terms leaving the parties to bear their own costs throughout. (V.K. Sharma) Judge. May 19, 2010. (cr)