R. S. A. No. 1083 of 2006 1 In the High Court of Punjab & Haryana at Chandigarh R. S. A. No. 1083 of 2006 (O&M) Date of decision : 5.9.2008 Pal Mohinder Singh and another ..... Appellants vs Baljeet Singh .... Respondent Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Adarsh Jain, Advocate, for the appellants. Rajesh Bindal J. The plaintiffs are in appeal before this court against the concurrent finding of fact by both the courts below whereby suit filed by them for declaration to the effect that they are owner in possession of the land measuring 5 bighas 18 biswas was dismissed. Further challenge in the suit was to the judgment and decree of the civil court dated 10.10.1995 suffered by the parties to the present appeal on the basis of oral exchange. Briefly the facts as noticed by the lower appellate court are as under:- “Plaintiffs Pal Mohinder Singh and Jaswinder Singh have filed the suit before the learned trial court for declaration as well as for permanent injunction, inter alia, alleging that they were owners in possession of land measuring 5 Bighas 18 Biswas, fully detailed and described in the head note of the plaint, situated in the area of Patti Jhutti, Bathinda. The parties to the suit are related to each other and defendant, being an education person, having remained in government service, has influence upon the plaintiffs and the plaintiffs too were having faith in him. It has been alleged that in the month of March 1995, the defendants approached the plaintiffs and requested them that since he was facing some R. S. A. No. 1083 of 2006 2 enquiries initiated by the Vigilance Department regarding his assets, therefore, in order to reduce his holdings located at Mandi Dabwali, the plaintiffs may exchange their land located at Bathinda, with the land of the defendants located at Dabwali and the defendant agreed to pay a sum of Rs. 5 lacs along with his 20/3779 share in land measuring 198 kanals 19 marlas comprised in khewat no. 1475 khatauni no. 2326, situated within the area of Nai Dabwali, Distt. Sirsa to the plaintiffs and in view of that, he would receive 5 Bighas 18 Biswas of land located at Bathinda. The said communication took place in the presence of Ganda Singh (since deceased), common relative of the parties and believing the said representation made by the defendant, the plaintiffs acceded to the request and they signed the papers as desired by the defendant but they never put in their appearance in the court at Dabwali nor they made any statement in the said suit before the court because Baljit Singh himself appeared in the court, filed his alleged written statement dated 29.7.1995 admitting the claim of the plaintiffs by getting his statement recorded on 29.7.1995 and the plaintiffs were never informed about the passing of the aforesaid decree dated 10.10.1995. According to the plaintiffs, in fact, no exchange ever took place between the parties nor actual possession of the lands were delivered nor amount of Rs. 5 lacs as agreed was paid by the defendant to the plaintiffs and therefore, the impugned decree is liable to be set aside being bad in law, null and void and not binding on the rights of the plaintiffs as the defendant has played a big fraud with the plaintiffs and got mutation no. 34745 sanctioned in his favour regarding the suit land as there was no reason or logic in giving 5 Bighas 18 Biswas of land located at Bathinda by receiving only 20/3779 shares in land measuring 188 kanals 19 marlas which R. S. A. No. 1083 of 2006 3 comes to only one kanal. The suit land is more valuable than the land located at Dabwali. The possession of the respective properties were not exchanged and thus, the decree has not been implemented and that the defendant has not made the payment of Rs. 5 lacs as agreed to by him and as such, according to the plaintiffs, the impugned judgment and decree is null and void, against law and facts and the same is liable to be set aside. As a consequential relief, the plaintiffs have sought permanent injunction to restrain the defendant from alienating the suit land.” Though the impugned decree was passed in a suit between the parties on 10.10.1995. The present suit was filed on 12.10.1998, more than three years thereafter. Primary ground raised for challenging the decree was that there was no comparison in the exchange of land between the parties and accordingly a fraud was committed. The value of lands exchanged by the parties was not comparable. Both the courts below found the ground to be untenable and dismissed the suit filed by the appellants. Even before this court, learned counsel for the appellants referred to documents Ex. P-4 and P-5 in support of his argument that the value of the land was not similar and the exchange was not possible and further that as promised a sum of Rs. 5 lacs were not paid by the respondent/defendant to complete the transaction of exchange. However, the contention raised by the learned counsel for the appellants is totally misconceived. It is a case where filing of earlier suit filed by the appellants/plaintiffs is admitted. It was further admitted by the appellants/plaintiffs that they had engaged a counsel and filed the suit and also got their statements recorded in that regard on the basis of which the suit was ultimately decreed. The claim set up in the earlier suit was regarding exchange of property as per understanding between the parties. Even from document Ex. D-3, it was found that respective possessions of the properties had also exchanged hands. Once these facts are admitted by the appellants/plaintiffs, no question of challenge to the decree will arise more than three years thereafter after the possession thereof had also been exchanged by the parties at the relevant time. R. S. A. No. 1083 of 2006 4 The findings recorded by the courts below are plain and simple findings of fact giving rise to no question of law much less a substantial question of law. Accordingly, the present appeal is dismissed. 5.9.2008 ( Rajesh Bindal) vs. Judge