R.S.A No. 1973 of 1983 (O&M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 1973 of 1983 (O&M) Date of decision : January 15, 2009 Charan Dass (dead) through L.Rs and another, ...... Appellant (s) v. Kundan Lal (dead) through L.Rs and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. Kanwal Goel, Advocate for Mr. Arun Palli, Sr. Advocate for the appellants. Mr. Anil Ksheterpal, Advocate for the respondents. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J (Oral) This appeal has been filed against concurrent judgments of the Courts below decreeing the suit of the respondents for declaration that the mutation in favour of the appellants did not affect their ownership right, and for joint possession. The plea taken by the appellants was that in fact there was an exchange of land between the parties in two villages. It was alleged that earlier there was an oral exchange and thereafter a written memo of R.S.A No. 1973 of 1983 (O&M) ::2:: partition-cum-exchange dated 29.12.1960 was also executed which is Ex.D2. Both the Courts below have disbelieved the version put-forward by the appellants that there was any exchange of land primarily on two reasons. The first reason which weighed with the Courts below was that even though there was a mutation in favour of the appellants of the land in one village yet there was no corresponding mutation of the land in the other village in favour of the respondents. The second reason was that a portion of the land in the other village which was in the name of the sister of the appellants was inherited by the son of that sister. Both the Courts below have also found that the document Ex.D2 (memo of partition-cum- exchange) was not proved. At the time when this appeal was filed, no question of law was proposed. Today, counsel for the appellants has proposed the following question of law :- “ Whether an exchange can only be proved by a mutation ?” Counsel for the appellants has further argued that the respondents had originally pleaded that they were owners in possession of the land in dispute up to the year 1974 and whereafter it was given to the appellants on batai. He further states that however, in their evidence the respondents had to admit that the appellants/their predecessors-in-interest had been in possession of the land in dispute since prior to 1958. As per the learned Counsel, this admission clearly demolishes the case set up by the respondents because in that situation, the version of the appellants that they continued to be in possession has to be accepted. In my opinion, both the questions of law do not strictly arise in R.S.A No. 1973 of 1983 (O&M) ::3:: this appeal. As regards the first question, even though a mutation may not be a conclusive proof yet the fact remains that in the present case it was not only the absence of possession but also there was absence of proof with respect to exchange of land. Memo. of exchange (Ex.D2) has been disbelieved by both the Courts below and that is a pure question of fact. Counsel for the appellants has not been able to persuade me that the finding recorded thereon is either based on no evidence or is based on such misreading of evidence so as to render the same so perverse as to be liable for interference under Section 100 of the CPC. As regards the second question, even if it is accepted that the version of the respondents that they were owners in possession uptill 1974 was found to be incorrect, yet their title in the property in dispute having been not doubted the fact that there was some collateral assertion which may not have been proved would not have the effect of non-suiting the respondents. Counsel for the appellants has relied upon Mohan Singh and others vs Lachhman Singh, 1992 PLJ 403 and Ajmer Singh vs Dharam Singh, 2006(1) PLJ 442. Both the judgments deal with a case of partition. Had there not been any mutation in favour of the appellants, the above said judgments may have been relevant. As the matter stands, however, a mutation was entered in favour of the appellants, while no corresponding mutation was entered in favour of the respondents. Counsel for the appellants has further argued that the document (Ex.P6) which is the jamabandi for the year 1971-72 of village Bhatha Dhua clearly reflects exchange. In fact, this document merely records the R.S.A No. 1973 of 1983 (O&M) ::4:: plea of the appellants that they have obtained the land in village Bhatha Dhua by way of exchange of land in village Mundian Kalan. Consequently, holding both the questions proposed against the appellants, this appeal is dismissed with no order as to costs. As the main petition has since been dismissed, all the pending civil miscellaneous applications, if any, also stand disposed of. ( AJAY TEWARI ) January 15, 2010. JUDGE `kk'