Civil Writ Petition No.21312 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.21312 of 2010 Date of Order: 15.12.2011 Smt. Kamlesh W/o Sh. Balraj Singh ...Petitioner Versus Husing Board, Haryana, Panchkula and another ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA Present:Mr. Pritam Saini, Advocate for the petitioner. Mr. Ashwani Talwar, Advocate for the respondents RAJIVE BHALLA, J (Oral) The petitioner prays for issuance of a writ in the nature of certiorari, quashing orders dated 04.06.2010 (Annexure P-2) and 23.08.2010 (Annexure P-4), passed by the Estate Manager, Housing Board Haryana, Panchkula, whereby the petitioner has been directed to get order, dated 26.02.2010 (Annexure P-1), passed by the Lok Adalat, Panchkula, registered with the Sub-Registrar, Panchkula. The petitioner was, admittedly, owner in possession of a residential house measuring 200 Sq. Yds., situated within the abadi of Village Madanheri, Tehsil Hansi, District Hisar. Jai Veer Singh son of Shri Bharat Singh, her real brother, was owner in possession of Civil Writ Petition No.21312 of 2010 -2- House No.2820(EWS), Urban Estate, Panchkula, measuring 40 Sq. Yds. The petitioner and her brother agreed to a mutual exchange of these properties but, thereafter, filed a petition under Section 19 of the Legal Services Authority Act, 1987 (hereinafter referred to as 'the Act'), for a decree of declaration that the petitioner is exclusive owner in possession of House No.280 (EWS), Urban Estate, Panchkula. The Lok Adalat, vide order dated 26.02.2010, declared that the petitioner is owner in possession of House No.2820, Sector- 15, Panchkula and Jai Veer Singh is owner in possession of house situated within abadi of Village Madanheri, Tehsil Hansi, Ditrict Hisar. After obtaining a certified copy of the decree passed by the Lok Adalat, the petitioner filed an application dated 12.04.2010 before the Estate Manager, Housing Board, Panchkula, for transfer of the House No.2820, Sector-15, Panchkula to her name. Vide letter dated 04.06.2010, the Estate Manager, Housing Board, Panchkula directed the petitioner to get the decree registered with the Sub-Registrar, Panchkula. The petitioner submitted a detailed representation dated 22.07.2010, informing the respondents that a decree passed by the Lok Adalat is deemed to be a decree of civil Court and as held in Mata Din v. Sultan and others, 1986, PLJ, 696 and Sona Ram and another v. Mulakh Raj Alias Lekh Raj and another, 1999 (3) PLR, 811, a mutual exchange of immovable property, which was accompanied by delivery of possession does not require compulsory registration. Despite this fact, the Estate Manager, has once again vide letter dated 23.08.2010 asked the petitioner to get the decree registered. Civil Writ Petition No.21312 of 2010 -3- Counsel for the petitioner submits that as the decree passed by the Lok Adalat is equated with a decree of civil court and as an oral exchange, accompanied by delivery of possession does not require registration, and as the exchange is between the brother and sister, the impugned orders should be set aside and the respondents should be directed to decide the matter afresh. Counsel for the respondents states that as the petitioner and her brother were owners of different self acquired properties, the exchange requires registration. A decree passed by the Lok Adalat, cannot be invoked as the oral exchange has created fresh rights, thereby requiring the respondents to seek registration of the decree. We have heard counsel for the parties and perused the impugned orders. Admittedly, the petitioner and her brother entered into an oral exchange, whereby House No.2820, Sector-15, Panchkula, has fallen to the share of the petitioner. It is not denied that the Lok Adalat has passed a decree accepting the oral exchange and holding that the petitioner is owner of House No.2820, Sector-15, Panchkula. As per Section 21 of the Legal Services Authorities Act, 1987, every award of the Lok Adalat shall be deemed to be a decree of civil court. Section 17(vi) of the Registration Act, 1908 provides that any decree or order of a Court shall not require registration except where the decree or order expressed to be made on a compromise, includes immovable property other than that which is the subject matter of the suit or proceeding. In addition, as held in Mata Din v. Sultan and others, 1986, PLJ, 696, an oral exchange does not require Civil Writ Petition No.21312 of 2010 -4- registration. A relevant extract from the judgment in Mata Din's (supra), reads as follows:- “6. Section 118 of the Act, which defines the word 'Exchange', provides that a transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale. 7. Section 54 of the Act, which besides defining the word 'sale' provides as to how 'sale' is to be made, inter alia , provides that in the case of tangible immovable property of the value of one hundred rupees and upwards can be made only by a registered instrument. 8. Section 118 of the Act, which has attracted the application of Section 54 of the Act for the purpose of mode of transfer or, in other words, effecting sale of the given value of the immovable property, has not been made applicable to the State of Haryana. 9. In view of the above, there is no escape from the conclusion that transaction of oral exchange of immovable property of any value could be effected without a registered document. The moment the property had been so exchanged, the Civil Writ Petition No.21312 of 2010 -5- plaintiff lost his title to the exchanged property and was, therefore, not competent to maintain his suit for recovery of the possession thereof. The Courts below have rightly dismissed the suit of the plaintiff. 10. For the reasons aforementioned, the appeal is dismissed with costs.” A relevant extract from the judgment in Sona Ram and another's (supra), reads as follows:- “10. Faced with this situation, counsel contended that even if the parties to the said suit had come in possession on the basis of exchange, then also that exchange would be inoperative because the exchange could be effected only by a registered document. This contention too is without any merit. Sections 54, 107 and 123 of the Transfer of Property Act were made applicable to the State of Punjab with effect from 1.4.1955 vide notification issued on March 26 1955. After these provisions were made applicable, sales, mortgages and leases of Immovable property could only be made by a registered document. Exchange of immovable property of the Civil Writ Petition No.21312 of 2010 -6- value of Rs.100/- or more could be made orally followed by delivery of possession. Reference in this regard be made to a Division Bench judgment of this Court in Sardara v. Harbhajan, AIR 1974 Punjab and Haryana 345 in which it has been held that only Sections 54, 107 and 123 have been extended to Punjab. Th Division Bench held that the scheme of the Act clearly shows that the sales, mortgages, leases and exchanges of the immovable property are dealt with on totally different footings and it is futile to urge that one takes colour from the other merely because under Section 118 of the Transfer of Property Act, an exchange can be made only in the manner provided for a sale. 11. In Sewa Singh v. Joginder Singh and others, 1986 P.L.J. 113, learned Single Judge of this Court held tat oral exchange relating to immovable property of the value of Rs.100/- or more is permissible in Punjab as the provisions of Section 118 of the Transfer of Property Act regarding exchange are not applicable to the State of Punjab. Civil Writ Petition No.21312 of 2010 -7- 12. Similarly in Mata Din v. Sultan and others, 1986 P.L.J., 696, another learned Single Judge of this court held that in the State of Haryana, mutual exchange of immovable property with delivery of possession of any value, can be effected without a registered document.” A perusal of the above judgments reveals that as Section 118 of the Transfer of Property Act has not been made applicable to the State of Haryana, an oral exchange does not require registration. In view of what has been stated hereinabove, the writ petition is allowed, the orders dated 04.06.2010 and 23.08.2010 are set aside and the matter is remitted to the respondents to reconsider the matter in the light of the aforementioned judgments, within three months from receipt of a certified copy of this order. (RAJIVE BHALLA) JUDGE December 15, 2011 (TEJINDER SINGH DHINDSA) nt JUDGE