RSA No.3396 of 2008 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3396 of 2008 (O & M) Date of Decision: 10.12.2010 Pirthi Singh .....Appellant Versus Lakhpat and another ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Yogesh Chaudhary, Advocate for the appellant. Mr. Ashish Aggarwal, Advocate for the respondents. L. N. MITTAL, J (ORAL) Plaintiff-Pirthi Singh, having lost in both the Courts below, is in second appeal. Plaintiff filed suit for possession of portion depicted by letters 'ABCDEF' in the site plan being part of Gair Mumkin Bara No.441 measuring 10 marlas. The plaintiff alleged that he is owner of the Bara in dispute measuring 10 marlas, but in his absence, defendant-respondent No.1 (who was sole defendant initially) encroached upon the suit portion of the Bara. Accordingly, plaintiff sought possession of the suit portion. Defendant No.1 denied the plaint allegations. It was pleaded that about 35 years ago, plaintiff exchanged half share of Bara No.441 with half share of Bara No.440 measuring 10 marlas with Baru Ram i.e 5 marlas each of Bara Nos.441 and 440 were exchanged. Since then, parties remained in possession of their respective portions as owners. Baru Ram transferred his half portion of Bara No.441 to Jag Ram by exchange. Jag Ram gave the same to RSA No.3396 of 2008 (O & M) -2- his two sons Ram Singh and Sham Singh equally. Ram Singh sold his portion to Puran Singh whereas after death of Sham Singh, his wife Rajpati sold the disputed portion of Bara No.441 to Jaswant (later on impleaded as defendant No.2) vide agreement dated 13.08.1999 for Rs.1,45,000/-. Since then, defendant No.2 is owner in possession of the suit portion. There is also electricity connection therein standing in the name of Rajpati since the year 1996. Similar stand was taken by defendant No.2 after he was impleaded as such on his own application. Learned Additional Civil Judge (Senior Division), Karnal vide judgment and decree dated 16.03.2007 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Karnal vide judgment and decree dated 21.12.2007. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the plaintiff-appellant vehemently contended that the Courts below erroneously placed the burden of proving that there was no exchange on the plaintiff-appellant, although it was for the defendants to prove that alleged exchange had taken place because they had raised the plea of alleged exchange. The contention appears to be very forceful on first blush, but on examining the same, it is found to be devoid of any merit. There is specific case of the defendants that plaintiff was given half portion of Bara No.440 in exchange of half portion (including suit portion) of Bara No.441. The plaintiff admitted in his cross- RSA No.3396 of 2008 (O & M) -3- examination that he is in possession of half portion of Bara No.440. Otherwise Bara No.440 was owned by Baru Ram. The plaintiff had no concern therewith. The very fact that the plaintiff is in possession of half portion of Bara No.440 depicts that the alleged exchange had taken place. Consequently, the plaintiff is left with no right, title or interest in half portion of Bara No.441 (including suit portion) which was given in exchange by him to Baru Ram in lieu of half portion of Bara No.440 with equal area. Thus plaintiff's own admission proves the defendants' version. The plaintiff had no right, title or interest in half portion of Bara No.440 which is now in his possession. Consequently, the said possession can be explained only on the basis of exchange set up by the defendants. In addition to the aforesaid, it is the plaintiff's case that in his absence about three months before the filing of the suit, defendant No.1 occupied the suit portion illegally and forcibly. However, it has come in plaintiff's own evidence that his brothers are also living in adjoining houses. It is, therefore, unbelievable that in absence of the plaintiff, his property was illegally and forcibly occupied by defendant No.1. The plaintiff has also admitted that Ram Singh has sold half portion of nothern side of Bara No.441 to Puran Singh whereas Rajpati has sold her portion to Jaswant defendant No.2. This admission further fortifies the defendants' version regarding aforesaid exchange. Plaintiff's own evidence is thus sufficient for non-suiting him. This is also electricity connection in the suit property in the name of Rajpati (vendor of defendant No.2). The said RSA No.3396 of 2008 (O & M) -4- connection, as stated by counsel for the appellant, exists there since the year 1996, having been sanctioned on 14.05.1996. The instant suit filed on 13.09.1999 i.e more than three years thereafter. Consequently, version of the plaintiff that the suit property was occupied by defendant No.1 about three months prior to the filing of the suit in plaintiff's absence stands falsified. Construction in the suit portion was raised by Jag Ram father-in-law of Rajpati (vendor of defendant No.2). It would also falsify the version of the plaintiff that suit property was forcibly occupied by defendant No.1 about three months prior to the filing of the suit. Ran Singh PW-2 witness of the plaintiff has also falsified his version. He has also stated that defendant No.2 purchased the suit property from Rajpati. He has also stated about existence of house of the plaintiff for the last 30-40 years. The said house is on half portion of Bara No.440 also. This admission would again show that alleged exchange had taken place about 35 years ago. On the other hand, it also depicts that defendant No.2 has purchased the suit portion from Rajpati, who was already residing there. Learned counsel for the appellant contended that oral exchange is not legal in view of Section 49 of the Registration Act. The contention cannot be accepted. Provisions of Chapter VI of the Transfer of Property Act relating to exchange were not applicable in Haryana at the relevant time and, therefore, oral exchange was legal and permissible and it cannot be said that it could be effected only through registered deed. Learned counsel for the appellant relied on judgment of Hon'ble Supreme Court in the case of Raghunath and others versus Kedarnath , 1969 AIR (SC) 1316. However, the said RSA No.3396 of 2008 (O & M) -5- judgment relates to mortgage and not exchange. The said judgment also does not pertain to State of Haryana. Judgment in the case of Satyawan versus Raghbir, 2002(2) RCR (Civil) 669 relied on by counsel for the appellant is also distinguishable on facts. Learned counsel for the appellant also contended that plaintiff's suit for possession is based on title and, therefore, previous possession is not required to be proved. The contention is misconceived because plaintiff's title over the suit property is not proved as he stood divested of ownership over the suit property in view of exchange effected 35 years back. Consequently, the plaintiff being no longer owner of the suit property is not entitled to possession thereof. Both the Courts below have properly analysed the evidence and come to concurrent finding against the plaintiff- appellant. The said finding is fully justified by the evidence on record and is not shown to be perverse or illegal so as to call for interference in second appeal. There has been no misreading or misappreciation of evidence. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed. 10.12.2010. ( L. N. MITTAL ) A. Kaundal JUDGE