IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 47 of 1998. Judgment Reserved on : 3.9.2009 Date of decision : 19.10.2009. Sita Kaur and others. …Appellants. Versus Swaran Kaur & Others. ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellants : Mr. N.K.Thakur, Advocate. For the Respondents : Mr. M.A. Khan, Advocate for respondents No. 1(a) to 1(f). None for respondent No. 2. Kuldip Singh , Judge Harnam Singh predecessor-in-interest of appellants was plaintiff and he had filed the present appeal assailing judgment, decree dated 14.1.1998 passed by the learned District Judge, Una in Civil Appeal No. 86 of 1992 reversing the judgment, decree dated 19.6.1992 passed by the learned Sub Judge 1st Class, Court No.II, Amb, District Una in case No. 588/1987 RBT No. 99/89 whereby the suit filed by Harnam Singh was decreed. 2. The facts, in brief, are that Harnam Singh had filed suit for declaration and permanent prohibitory injunction against Dharam Singh predecessor-in-interest of respondents 1(a) to 1(f) and Sadhu 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes. 2 Singh respondent No.2 on the grounds that Harnam Singh and Sadhu Singh were joint owners of the land comprised in khasra No. R.17/15/2 measuring 1 Kanal and it was in exclusive hissadari possession of Harnam Singh by way of Abadi and court-yard situated in village Diara, Tehsil Amb. Dharam Singh and Sadhu Singh in order to oust Harnam Singh from the suit land joined hands and got sanctioned fake exchange and on the basis of said exchange Dharam Singh threatened to open doors and windows as shown in plan towards the suit land. It has been pleaded that no exchange took place and no title had passed over to Dharam Singh on the basis of exchange. It was pleaded that threatened acts of Dharam Singh were unlawful. In the suit, alternative prayer for mandatory injunction was also made. 3. Dharam Singh and Sadhu Singh contested the suit on the grounds of estoppel, maintainability and cause of action. The Hissadari possession of Harnam Singh was denied. It was pleaded that Dharam Singh had his abadi abutting the suit land and he had already kept doors and ventilators. Sadhu Singh had 3/8th share in the suit land and he had exchanged his 3/8th share with Dharam Singh, as such, Dharam Singh became owner of the share of Sadhu Singh in the suit land. Harnam Singh in connivance with the settlement staff illegally got recorded his exclusive Hissadari possession on the suit land. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is in exclusive hissadari possession of the suit land, as alleged? …OPP. 3 2. Whether the exchange of land by defendant No.2 in favour of defendant No.1 vide mutation No. 1889 is wrong, incorrect and void? …OPP. 3. Whether the suit is liable to be stayed under Section 10 C.P.C. ? …OPD. 4. Whether the plaintiff is estopped by his act and conduct? …OPD. 5. Whether the suit is not maintainable? ...OPD. 6. Relief. The trial Court answered issues No. 1 and 2 in affirmative, issues No.3, 4 and 5 in negative and decreed the suit on 19.6.1992. In the appeal filed by Dharam Singh, the learned District Judge on 14.1.1998 set-aside the judgment, decree dated 19.6.1992 and dismissed the suit. In these circumstances, Harnam Singh had filed second appeal, during the pendency of the second appeal, Harnam Singh appellant and Dharam Singh respondent No.1 died and their legal representatives were brought on record. The appeal has been admitted on the following substantial question of law:- Whether there can be an oral exchange without the factum of delivery of possession ? 4. I have heard Mr. N.K.Thakur, Advocate, learned counsel appearing on behalf of the appellants and Mr. M.A.Khan, Advocate, learned counsel appearing on behalf of respondents 1(a) to 1(f) and have also gone through the record. The learned counsel appearing on behalf of the appellants has submitted that no oral exchange without delivery of possession is permissible in law and, therefore, no title of the suit land had passed to Dharam Singh predecessor of 4 respondents 1(a) to 1(f) on the basis of oral exchange which was without delivery of possession. He has submitted that learned lower Appellate Court has not properly appreciated the legal position. The learned counsel appearing on behalf of respondents 1(a) to 1(f) has supported the impugned judgment, decree. 5. Harnam Singh, Dharam Singh and Sadhu Singh original parties in the suit were real brothers. It was the case of Harnam Singh in the Court below that he and Sadhu Singh were joint owners of suit land. In the suit, Harnam Singh had challenged exchange made by Sadhu Singh in favour of Dharam Singh of the share of Sadhu Singh in the suit land. The mutation of exchange Ex.D-1 was attested on 28.10.1987. DW-1 Dharam Singh has stated that he had given 7 marlas land to Sadhu and Sadhu had given 7 marlas land to him and put him in possession. The respondent No.2 has not disputed the exchange of land given by him to Dharam Singh. On the contrary, the respondent No.2 has accepted the exchange of lands in between him and Dharam Singh. In these circumstances, Harnam Singh predecessor-in-interest of the appellants had no locus standi to challenge the exchange of land given by respondent No.2 to Dharam Singh. The delivery of possession consequent to exchange has been proved on record. 6. In Gulab Singh and another Vs. Smt. Dilbaru and others 1988 (1) Sim.L.C. 340, the contention that exchange has to be effected by a registered document was not accepted. A learned single Judge of this Court affirmed the findings of the learned Additional District Judge that exchange could be effected orally between the parties and it was not necessary to effect the same by a 5 registered document only. It was held that oral exchange was permissible in Tehsil Kullu because under Section 118 of the Transfer of Property Act was not applicable to the State of Punjab. The learned counsel for the appellant has not shown anything so as to record a finding that Section 118 of the Transfer of Property Act was applicable at the relevant time in the concerned area. In absence of contrary material, a presumption is available with respect to due attestation of mutation of exchange on 28.10.1987 vide Ex.D-1. The learned District Judge has rightly appreciated the material on record. The learned counsel for the appellants has failed to make out any case for interference. The substantial question of law referred above, is decided against the appellants. 7. No other point was urged. 8. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) October 19, 2009. Judge. (GR)