R. S. A. No. 4078 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4078 of 2010 Date of Decision : October 26, 2010 Mithu Singh .... Appellant Vs. Jasvir Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. C. M. Munjal, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Plaintiff Mithu Singh, having remained unsuccessful in both the courts below, has filed the instant second appeal. Appellant filed suit against defendant-respondent Jasvir Singh alleging that the plaintiff-appellant is owner in possession of the suit land measuring 02 kanals 10 marlas comprised of killa nos.7/2 min. (0-3) and 14 (2-7). The plaintiff never exchanged the suit land with 02 kanals 10 marlas land of killa no. 18/1 (hereinafter referred to as `the exchanged land'). The defendant was not in possession of the exchanged land nor he was owner thereof because he had already sold the land in excess of his share. Alleged R. S. A. No. 4078 of 2010 2 memorandum of exchange dated 09.04.2006 is false and fabricated. Mutation no. 2207 sanctioned regarding the alleged exchange is also illegal and not binding on the plaintiff. Report Roznamcha Patwari No.272 dated 09.04.2006 regarding the alleged exchange has also been challenged in the suit. The plaintiff-appellant also claimed permanent injunction. The defendant controverted the plaint allegations and inter alia pleaded that the plaintiff exchanged the suit land with exchanged land of the defendant and memorandum of exchange was duly executed and mutation no. 2207 has been rightly sanctioned regarding the exchange. The exchange was actually implemented by exchanging possession of the suit land and the exchanged land. Various other pleas were also raised. Learned Civil Judge (Junior Division), Mansa, vide judgment and decree dated 29.01.2010, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned District Judge, Mansa, vide judgment and decree dated 07.09.2010. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that alleged document of exchange has not been placed on record. The contention does not help the appellant because existence of the said document has been pleaded by the plaintiff-appellant himself, although its R. S. A. No. 4078 of 2010 3 execution by him has been controverted. However, defendant has examined the Patwari, who has stated about the exchange. Report Roznamcha Patwari has also been produced regarding the exchange. Mutation sanctioned on the basis thereof regarding the exchange has also been produced. Patwari has also stated that the defendant had sold 19 kanals 16 marlas land out of his share of 21 kanals 18 marlas land. Thus, defendant was left with 02 kanals 02 marlas share in the joint land. When possession of the suit land with exchanged land was also exchanged, it does not lie in the mouth of the appellant to contend that defendant-respondent was not in possession of the exchanged land. There is concurrent finding of fact by both the courts below regarding the exchange. The said finding is based on appreciation of evidence and is not shown to be perverse or illegal so as to call for interference in second appeal. Learned counsel for the appellant next contended that memorandum of exchange, being unregistered, could not effect valid exchange as it was exchange deed, which required compulsory registration. The contention is untenable because the plaintiff-appellant himself has alleged in the plaint that the document is memorandum of exchange. The plaintiff has not even alleged that it is exchange deed. Faced with this situation, learned counsel for the appellant referred to testimony of defendant-respondent in the witness-box. He has stated that exchange was effected and possession was also exchanged at the spot and thereafter, R. S. A. No. 4078 of 2010 4 writing was effected regarding the exchange. On the basis of this statement, learned counsel for the appellant contended that the document in question was exchange deed. The contention is untenable. The defendant has stated that exchange was effected and even possession was exchanged first and it was later on that writing was made regarding the exchange. It would clearly depict that the writing was memorandum of oral exchange and was not exchange deed. This conclusion finds support from the averment in the plaint itself, wherein plaintiff-appellant himself referred to document as memorandum of exchange. The mere fact that memorandum of exchange was written on the date of exchange itself would not make it an exchange deed, when the document was written after the exchange had already been effected and even possession had already been exchanged. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. October 26, 2010 ( L. N. MITTAL ) monika JUDGE