R. S. A. No. 1956 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1956 of 2008 Date of Decision : October 04, 2010 Harvinder Kaur and another .... Appellants Vs. State of Punjab and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Amit Jain, Advocate for the appellants. Mr. Vivek Chauhan, AAG, Punjab for respondents no.1 and 2. Mr. V. K. Sandhir, Advocate for respondents no.3 and 6. None for the remaining respondents. * * * L. N. MITTAL, J. (Oral) : This is second appeal by plaintiffs no.7 and 8 after the plaintiffs remained unsuccessful in both the courts below. Suit was filed by appellants and proforma respondents no.7 to 11 and Sher Singh against respondents no.1 to 6. Defendant-respondents no.1 and 2 are State of Punjab and Secretary, Department of Animal R. S. A. No. 1956 of 2008 2 Husbandry and Veterinary, Punjab. Defendant-respondents no.3 to 6 are Gram Panchayat of Village Patran, Zila Parishad, Patiala, Chief Executive Officer of Zila Parishad, Patiala and Panchayat Samiti, Patran respectively. Plaintiffs' case is that originally Sher Singh – plaintiff no.1 was owner in possession of 07 kanals 02 marlas land of khasra no.28//9 (hereinafter called the original land). Gram Panchayat, Patran – defendant no.3 was owner in possession of 06 kanals 15 marlas land comprised of khasra no.27//8 (hereinafter called the suit land). According to plaintiffs, suit land was of inferior quality, whereas original land of Sher Singh was of superior quality. There was oral exchange between Sher Singh – plaintiff no.1 and Gram Panchayat – defendant no.3 in the year 1975, according to which plaintiff no.1 gave half share of the original land to Gram Panchayat in lieu of total suit land measuring 06 kanals 15 marlas. Possession was also exchanged accordingly. Since then, Gram Panchayat was in possession of half share of the original land and Sher Singh was in possession of the suit land. However, mutation of exchange was not sanctioned. State of Punjab – defendant no.1, with the assistance of Gram Panchayat – defendant no.3, constructed veterinary hospital over half of the original land. Sher Singh – plaintiff no.1, vide sale deed dated 22.07.1997, sold the original land measuring 07 kanals 02 marlas to his daughters – plaintiffs no.2 to 6 (proforma respondents no.7 to 11). However, possession of suit land measuring 06 kanals 15 marlas was delivered to the vendees in lieu of half R. S. A. No. 1956 of 2008 3 share of the original land, whereas possession of half share of the original land and other land sold by Sher Singh was delivered to the vendees. Plaintiffs no.7 and 8 are widow and minor son of Gurtej Singh – pre- deceased son of Sher Singh – plaintiff no.1. They challenged the aforesaid sale deed by filing civil suit, which was decreed on 11.08.2001 and accordingly, plaintiffs no.7 and 8 became owners of the original land measuring 07 kanals 02 marlas. However, since Sher Singh had taken the suit land in exchange, plaintiffs no.7 and 8 became owners of the suit land. However, defendant no.3 is still recorded to be owner of the suit land, which has now been mutated in favour of Panchayat Samiti – defendant no.6, pursuant to transfer order passed by defendant no.5 and mutation no.10532 has accordingly been sanctioned. On these averments, plaintiffs sought declaration that plaintiffs no.1 to 6 were owners in possession of the suit land measuring 06 kanals 15 marlas in view of oral exchange and now, plaintiffs no.7 and 8 have become owners in possession of the suit land and defendants have no concern therewith. Entries in revenue record regarding ownership are wrong and are liable to be corrected and transfer order by defendant no.5 and mutation no.10532 regarding suit land in favour of defendant no.6 are null and void. In the alternative, plaintiffs claimed decree in favour of plaintiffs no.7 and 8 for possession of half share of the original land measuring 07 kanals 02 marlas. Relief of injunction was also sought regarding the suit land. R. S. A. No. 1956 of 2008 4 Only defendants no.1 and 2 contested the suit, whereas remaining defendants were proceeded ex-parte. Defendants no.1 and 2 admitted that original land measuring 07 kanals 02 marlas stood in the name of Sher Singh – plaintiff no.1, whereas suit land 06 kanals 15 marlas stood in the name of Gram Panchayat – defendant no.3. On 09.03.1988, defendant no.3 – Gram Panchayat gave 04 kanals land to Veterinary Department of State Government for establishing Veterinary Dispensary and accordingly, Marketing Board constructed Veterinary Dispensary in said 04 kanals land at cost of Rs.25,000/-, which is still in existence to the knowledge of the whole world. As regards alleged oral exchange, it was pleaded that there is no record of the oral exchange between Sher Singh and Gram Panchayat. Possession of 04 kanals land, on which dispensary exists, is continuous and uninterrupted. Various other pleas were also raised. Learned Civil Judge (Junior Division), Samana, vide judgment and decree dated 01.10.2005, dismissed the plaintiffs' suit. First appeal preferred by plaintiffs no.2 to 4 and 6 to 8 has been dismissed by learned Additional District Judge (Adhoc), Patiala, vide judgment and decree dated 13.09.2007. Feeling aggrieved, plaintiffs no.7 and 8 have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. According to revenue record, Sher Singh – plaintiff no.1 R. S. A. No. 1956 of 2008 5 continued to be recorded as owner in possession of original land in various jamabandis although existence of Veterinary Hospital/Dispensary was recorded in khasra girdawari in part of the original land. Initially, part of the original land was recorded to be in possession of Gram Panchayat – defendant no.3 from the year 1979 till 1981 on account of exchange, in khasra girdawari, but thereafter, existence of hospital was mentioned, although even in khasra girdawari, Sher Singh was recorded to be in possession of the said land since 1985 onwards. On the other hand, regarding 06 kanals 15 marlas land in suit, Gram Panchayat continued to be recorded as owner thereof in revenue record, whereas plaintiff no.1 Sher Singh was recorded to be in possession thereof on payment of chakota. As regards plea of oral exchange of half of the original land of Sher Singh with suit land of Gram Panchayat, the same cannot be accepted. Except stray entry in khasra girdawari since 1979 till 1981 regarding part of the original land depicted to be in possession of Gram Panchayat in khasra girdawari on account of exchange, there is no other evidence regarding the alleged exchange. Gram Panchayat could not effect exchange without passing resolution, but no resolution of Gram Panchayat regarding alleged exchange has been produced in evidence. Moreover, suit land was never recorded in possession of Sher Singh on account of alleged exchange. In addition to it, Sher Singh sold the original land to his daughters vide sale deed dated 22.07.1997 i.e. 22 years after the alleged exchange and in the R. S. A. No. 1956 of 2008 6 said sale deed, there was no mention of the alleged exchange. On the contrary, the very fact that Sher Singh executed the said sale deed regarding the entire original land would completely negative the plea of the plaintiffs regarding alleged exchange. Even in suit filed by plaintiffs no.7 and 8 (appellants herein) challenging the said sale deed dated 22.07.1997, no mention of the alleged exchange was made and plaintiffs no.7 and 8 were held to be owners in possession of the original land. Consequently, there is no infirmity in the concurrent finding of the courts below that alleged oral exchange is not proved. However, when there was no exchange, plaintiffs cannot be deprived of original land measuring 07 kanals 02 marlas. Defendants no.1 and 2 have admitted in the written statement that Sher Singh was owner in possession thereof. Defendants acquired no right, title or interest in the original land measuring 07 kanals 02 marlas belonging to Sher Singh in any manner whatsoever. On the other hand, defendants no.1 and 2 pleaded the existence of hospital in 04 kanals land, but very cleverly did not mention as to in which land the said hospital or dispensary came into existence. On the other hand, it is positive case of the plaintiffs that the said hospital has been established in part of the original land as also depicted by the revenue record. However, Sher Singh was owner of the said original land, of which plaintiffs no.7 and 8 are now owners. Consequently, defendants have no right to retain possession of any part of the original land. The appellants are R. S. A. No. 1956 of 2008 7 therefore entitled to succeed regarding alternative relief of possession of half share of the original land. In view of the aforesaid, the following substantial question of law arises for determination in the instant second appeal :- “Whether the plaintiffs could be non- suited qua suit land as well as qua original land irrespective of whether oral exchange was proved or not ?” For the reasons aforesaid, the aforesaid substantial question of law is answered in favour of the appellants holding that the plaintiffs could not be non-suited qua original land as well as suit land. Since alleged exchange is not proved, appellants are entitled to succeed regarding their original land as claimed by way of alternative relief. As a necessary upshot of the aforesaid discussion, the instant second appeal is allowed and judgments and decrees of the courts below are set aside and suit filed by the plaintiffs is decreed for alternative relief granting decree of possession of half share of the original land measuring 07 kanals 02 marlas comprised in khasra no.28//9 in favour of plaintiffs no.7 and 8 – appellants. October 04, 2010 ( L. N. MITTAL ) monika JUDGE