IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1810 of 2008 (O&M) Date of decision: 2.9.2008 Baldev Singh ......Appellant Versus Davinder Singh ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Nand Lal Sammi, Advocate for the appellant. Rakesh Kumar Garg, J . CM No.5508-C of 2008 For the reasons stated in the application, delay of 47 days in refiling the appeal is condoned. RSA No.1810 of 2008 The appellant and the respondent are the real brothers who are co-sharers of the agricultural land measuring 312 Bigha and 19 Biswa as detailed in the head note of the suit, along with their mother Smt. Bachan Kaur and brothers Mohinder Singh and Ujjagar Singh. Out of the total holding of 312 Bighas and 19 Biswas Smt. Bachan Kaur was the owner to the extent of 1/10 share and out of the remaining land all the four brothers are having equal share. As per the averments made in the civil suit, about 10 years ago, the defendant-respondent had exchanged the land under his cultivation comprised in Khewat/Khatoni No.18/41, Khasra Nos.676(9-6), 679(6-5), 680(6-5) and 681 (6-5), total measuring 28 bigha and 1 biswa with the land under cultivation of plaintiff comprised in Khewat/Khatoni No.57/108, Khasra Nos.783(5-17), 782 (5-13) and Khewat/Khatoni No.18/41, Khasra No.697(6-0), 698(5-17), total 23 bigha – 7 biswa. Since the land under cultivation land of the appellant was of superior quality whereas the land under the cultivation of defendant was of inferior quality, the appellant was compensated with 4 bigha and 14 biswa of excess agricultural land at the time of exchange for parting with superior land in favour of defendant-respondent. Since then, both the appellant and respondent are in their respective possession of their exchanged land. At the time of the said exchange, it was agreed and admitted by the respondent that he had left his share to the extent of 4 bighas and 14 biswas of land out of his share, due to the above exchange of land between them. In spite of this, the defendant has filed an application for partition to the extent of his full share and, therefore, the cause of action has arisen to the appellant, hence, he filed the instant suit for declaration that he is entitled to 4 bighas and 14 biswas of land from ¼ th share of the defendant land out of the total joint holdings. The suit was contested by the respondent by filing written statement denying that any exchange of land had taken place between the parties or he had left 4 bighas 14 biswas of his land in favour of the plaintiff. It was also stated that the parties to the suit along with their two brothers are co-sharers in the total agricultural land measuring 312 bighas and 19 biswas and the respondent had moved an application for partition of the total agricultural land before the Assistant Collector, IInd Grade. It has been further averred in the written statement that the appellant raised the plea of exchange before the said authority which was rejected. His appeal against the said order of the Tehsildar was also dismissed by the Collector, Sub Division, Patiala vide order dated 29.4.1989. The appellant then filed a revision petition before the Commissioner, Patiala Division, Patiala against the said order,which was dismissed in default on 27.6.2000. It was also denied that the parties are in possession of the exchanged land and rather it was stated that the parties to the suit are in possession being co-sharers in the total land. The suit was dismissed by the trial Court vide judgement and decree dated 28.7.2006. Aggrieved by the aforesaid judgment and decree, the appellant filed an appeal which was also dismissed by the Additional District Judge, Patiala vide impugned judgment and decree dated 16.8.2007. Hence, the present appeal. Counsel for the appellant while challenging the judgment and decrees of the Courts below has argued that the factum of exchange of land between the parties stands clearly established from the revenue record. According to the learned counsel, after the death of father of the parties, a family settlement was reached for partition of the land and, as such, the parties came in possession of the land which fell to their respective share and also on account of exchange that took place between the appellant and the respondent and therefore, the suit of the appellant for declaration is liable to be decreed. Learned counsel has also argued that the Courts below have erred in law while ignoring revenue record regarding the ownership and possession of the appellant. I have heard learned counsel for the appellant and find no force in his arguments. The Courts below after hearing counsel for the parties and after going through the evidence produced on record by both the parties have concurrently held that the plaintiff-appellant has alleged exchange of land between the plaintiff and the defendant, but he could not produce any evidence regarding the exchange of land between the co- sharers, particularly when both of them have been shown as co-owners in the property in dispute along with their two other brothers namely Mohinder Singh and Ujjagar Singh. While recording the said finding of fact , the Courts below have also noticed the earlier suit filed by the parties bearing civil suit No.420 of 6.1.1988 decided on 29.5.1989 titled as Davinder Singh v. Baldev Singh in which defendant-Baldev Singh (presently appellant) had not taken any plea with regard to the partition of exchanged land. Thus, in my view, the appellant has failed to prove the alleged exchange of land with the respondent. Moreover, this plea of the appellant has already been rejected by the revenue Courts upto the level of the Commissioner. Apart from this, the proceedings for partition of joint Khata by metes and bounds are pending before the Revenue Authorities and as such, whatever plea with regard to share the appellant wants to take, he may take the same before the Revenue Authorities in the partition proceedings in accordance with law. No substantial question of law arises in the appeal. For the reasons recorded above, the appellant is not entitled to the relief of declaration as prayed for, as such, the present appeal having no merit is dismissed. September 2, 2008 (RAKESH KUMAR GARG) ps JUDGE