R.S.A. No. 2098 of 1990 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2098 of 1990 (O&M) Date of decision: 21.03.2009 Surjit Singh and another ....Appellants Versus Panjab Kaur and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. D.S. Brar, Advocate, for the appellants. Mr. R.K. Aggarwal, Advocate, for respondent No. 1. ***** VINOD K. SHARMA, J This is an appeal by the defendant /appellant against the judgment and decree passed by the learned Additional District Judge, Ropar, decreeing the suit filed by the plaintiff/respondent. The plaintiff/respondent brought a suit on the pleading that her husband Kaka Singh, and Sarup Singh defendant No. 3 were first cousins. Kaka Singh husband of the plaintiff was son of Sawan Singh alias Sohan Singh while Sarup Singh was son of Dayala brother of Sawan Singh alias Sohan Singh. Surjit Singh was also the brother of Sarup Singh. Under two exchange deeds, separately executed by one R.S.A. No. 2098 of 1990 (O&M) -2- Gurnam Singh in favour of Kaka Singh and Sarup Singh, the cousins obtained the site in suit marked ABCDEFGH from Gurnam Singh, and in exchange Kaka Singh gave plot No. 100 measuring 5 marlas to Gurnam Singh while Sarup Singh also gave similar plot to Gurnam Singh. The registered exchange deeds were executed on September 14, 1959. The property received in exchange by Kaka Singh and Sarup Singh was joint for about 5-6 years, thereafter it was mutually partitioned whereby the constructed portion was given to Sarup Singh and vacant site to Kaka Singh. The vacant site which was part of original site was referred to as ABCDEFGH. A room was constructed on point 'Y' in the site plan. After the partition, Kaka Singh exclusively owned and possessed this property. Kaka Singh died in the year 1971, and was survived by his widow Punjab Kaur plaintiff and two daughters who were married and living separately. It was the case of the plaintiff that taking advantage of the fact that the plainitff/respondent was a widow, Surjit Singh forcibly took possession of the property belonging to Kaka Singh. The matter was reported to the police and proceedings under Section 107/151 Cr.P.C. were commenced and even a criminal case was registered. Panjab Kaur had filed a suit for injunction, but that was rendered infructuous as she lost possession and, therefore, the present suit was filed for recovery of actual physical possession. The suit was contested by defendants by pleading that Kaka Singh was not allotted plot No. 100. Gurnam Singh was owner in possession of the half share in the village and exchange was said to be void. It was also denied that there was any partition between Sarup R.S.A. No. 2098 of 1990 (O&M) -3- Singh and Kaka Singh. Case set up was that the property marked ABCDEFGH was earlier owned and possessed by Sawan Singh father of Kaka Singh from whom Surjit Singh purchased for a sum of Rs.6,000/- (Rupees six thousand only) through a registered sale deed dated December 8, 1981. The learned trial Court concluded that the allotment of plot No. 100 to Kaka Singh was not valid, therefore, Kaka Singh was held to be not competent to give this plot in exchange to Gurnam Singh, and accordingly exchange of property between Kaka Singh and Gurnam Singh was held to be void. Similarly, the exchange between Sarup Singh and Gurnam Singh was also held to be void. However, the learned trial Court recorded a finding that partition had taken place between Sarup Singh and Kaka Singh. The learned trial Court was pleased to hold that as there was no exchange, therefore, the plaintiff was held to have failed to prove that the property which she was seeking was part of bigger property. Other issues were also decided against the plainitff/respondent and it was held that she was not entitled to recover the possession of the suit property. However, the learned trial Court also held that Surjit Singh had failed to prove that the suit property was owned and possessed by Sawan Singh father of Kaka Singh from whom he was said to have purchased the property by way of registered sale deed. However, as already observed above, in view of the finding recorded, the suit filed by the plaintiff/respondent was ordered to be dismissed. However, in appeal, the learned lower appellate Court on appreciation of evidence recorded a finding that Kaka Singh was said to have obtained plot No. 100 measuring 5 marlas, and as per jamabandi for R.S.A. No. 2098 of 1990 (O&M) -4- the year 1955-56 Ex P-4, he was in possession thereof as gair marusi without payment of any rent. The mutation of exchange Ex. P-5 showed that there was reference to letter of Government alloting plot No. 100 to Kaka Singh. The learned lower appellate Court did not agree with the finding of the learned trial Court that the plaintiff had not placed on record any evidence of Revenue/Consolidation Department to show as to how Kaka Singh became owner of the plot No. 100 which was in his possession as gair marusi. The finding of the learned trial Court that original letter of allotment was not proved on record was reversed by holding that Jagir Singh son of Gurnam Singh had appeared as PW-3 and stated that plot No. 100 had been received in exchange by his father from Kaka Singh, who had also received plot No. 94 in exchange from Sarup Singh. He had also categorically stated that his father had delivered possession of the suit land to Kaka Singh and Sarup Singh, whereafter partition had taken place between Kaka Singh and Sarup Singh. The learned lower appellate Court, therefore, held that it was clear from the evidence on record that under the exchange, actual possession of respective exchanged property also changed hands. The finding of the learned trial Court holding the exchange to be void was, thus, set aside. The learned lower appellate Court held that mere non- production of letter of allotment in original could not upset the exchange where possession had changed hands. It was also held that objection to the exchange could only come from a party thereto, or from someone claiming through such party. As Surjit Singh was not party to the exchange nor his vendor Sawan Singh was a party, therefore, he was not R.S.A. No. 2098 of 1990 (O&M) -5- entitled to challenge the exchange. The learned lower appellate Court on appreciation of evidence, however, affirmed the finding of the learned trial Court holding that Sarup Singh and Kaka Singh had mutually partitioned the suit property The finding of the learned trial Court holding that the suit property was not owned and possessed by Sawan Singh was also affirmed. Thus, on appreciation of evidence, the learned lower appellate Court was pleased to record a positive finding that Kaka Singh and Sarup Singh had exchanged their respective plots with Gurnam Singh, and under this exchange they had received from Gurnam Singh property described as ABCDEFGH on which the construction was raised by Sarup Singh, and after partition, constructed portion fell to the share of Sarup Singh while remaining part fell to the share of Kaka Singh, who died in 1971, which was inherited by plaintiff/respondent. The learned lower appellate Court also held that the share of Kaka Singh could not have been transferred to Surjit Singh by Sawan Singh father of Kaka Singh under the sale deed dated December 8, 1981 Ex. D-1. The learned learned lower appellate Court also held that the plaintiff/respondent was ousted from possession during the pendency of earlier suit for injunction and, therefore, the present suit was filed for recovery of possession or in alternative for separate possession of half share and further to declare sale deed dated December 8, 1981 to be null and void. The learned lower appellate Court thus reversed the finding of the learned trial Court and decreed the suit. A decree for possession as owner of property shown as ABCDEFGH and room marked 'Y' in the site plan was passed in favour of plaintiff/respondent and against the R.S.A. No. 2098 of 1990 (O&M) -6- defendant. The learned lower appellate Court held the sale deed Ex. D-1 executed by Sohan Singh alias Sawan Singh to be null and void. The cross-objections filed by appellant/defendant were also ordered to be dismissed. Mr. D.S. Brar, learned counsel appearing on behalf of the appellants raised the following substantial questions of law for consideration: - "1. Whether in facts and circumstances by reversing the finding on issue Nos. 1 to 4 given by trial Court that the plaintiff Punjab Kaur widow of Kaka Singh has failed to prove ownership, by way of exchange of residential plot with Gurnam Singh, the lower appellate Court has misread the evidence and findings are peverse? 2. Whether in the facts and circumstances of the case the findings of lower appellate Court on issue Nos. 5, 6 and 7, reversing trial Court findings are perverse and based on misreading of the evidence? 3. Whether the finding of the lower appellate Court on issue Nos. 7 and 8 are against the evidence on record and unsustainable? 4. Whether findings of both the Courts below that by sale deed dated 8.12.1981 (D1) Sohan Singh father of Kaka Singh could not sell the plot to Surjit Singh is against the documentary and oral evidence, thus bad in law? 5. Whether in the facts and circumstances entire approach of lower appellate Court is against law and facts and cannot be sustained?" In support of the substantial questions of law, the learned R.S.A. No. 2098 of 1990 (O&M) -7- counsel for the appellants vehemently contended that the finding recorded by the learned lower appellate Court is outcome of misreading of evidence on record. He further contended, that the property in dispute was shown to be mustarka malkan and possession of Kaka Singh was shown as cultivator, therefore, the learned trial Court was right in holding that the exchange by Kaka Singh with Gurnam Singh was bad in law. It is also the contention of the learned counsel for the appellants that rather in the revenue record it was Sarup Singh who was shown to be in possession as gair marusi. The contention of the learned counsel for the appellants further was that registered sale deed produced on record showed that it was the appellant/defendants, who were owner of the property in dispute and, therefore, the learned lower appellate Court committed an error in law in upsetting the judgment of the learned trial Court, by ignoring the sale deed duly proved on record. The learned counsel for the appellants also referred to the statement of plaintiff/respondent, who appeared as PW-4, to contend that there was admission by the plaintiff that there was no partition between the plaintiff and her father-in-law. He also referred to the admission that Sawan Singh had been living with Kaka Singh to contend that the property, in fact, belonged to Sawan Singh and not Kaka Singh. On the contentions referred to above, the learned counsel for the appellants, therefore, contended that the judgment and decree passed by the learned lower appellate Court is outcome of mis-reading of evidence, therefore, perverse. However, on consideration of matter, I find no force in the contentions raised by the learned counsel for the appellants. The learned R.S.A. No. 2098 of 1990 (O&M) -8- lower appellate Court on appreciation of evidence has rightly come to the conclusion that exchange was by way of registered documents, which did mention that the plot was allotted to Kaka Singh and thereafter there was evidence to show that the plot was exchanged with Gurnam Singh, and the property in dispute was taken in exchange jointly by Kaka Singh and Sarup Singh, therefore, it cannot be said that the finding recorded by the learned lower appellate Court is outcome of mis-reading of evidence or perverse. The contention of the learned counsel for the appellants that once it was proved on record, by way of admission by the plainitff that Sawan Singh used to live with Kaka Singh even after the exchange, this proves the fact that it was Sawan Singh, who was owner in possession of the property and that the sale deed Ex D-1 was validly executed, therefore, both the learned Courts below erred in law in holding that the sale deed was void for want of title of Sawan Singh. This plea of the learned counsel for the appellants cannot be sustained. In view of the oral and documentary evidence brought on record, it was clearly proved on record that Kaka Singh was allotted plot No. 100 measuring 5 marlas on March 3, 1956, whereas Sarup Singh was allotted plot No. 94, which was exchanged by way of registered exchange deed on September 14, 1959. In view of this positive evidence it could not be said that Sawan Singh was owner in possession. The learned Courts below rightly recorded a concurrent finding of fact that the exchanged plots were mutually partitioned between the parties. The learned lower appellate Court was right in holding that mere non-production of original allotment letter could not R.S.A. No. 2098 of 1990 (O&M) -9- be held to be fatal, specially when learned trial Court had held that the sale deed Ex. D-1 did not confer any title as Sawan Singh was not proved to be owner of the plot in dispute. The finding of fact recorded by the learned lower appellate in decreeing the suit cannot be said to be outcome of mis-reading of oral and documentary evidence on record, as contended, nor the finding can be said to be perverse. Consequently, the substantial questions of law, framed, are answered against the appellant/defendants and in favour of the plainitff/respondent. The appeal is ordered to be dismissed, but with no order as to costs. (Vinod K. Sharma) Judge March 21, 2009 R.S.