IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 197 of 1999 Reserved on: 25.08.2010 Decided on: 22.09.2010 Rajnesh Kumar Sood & others …Appellants. Versus Surinder Kumar & others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the appellants: Mr. Bhupinder Gupta, Senior Advocate, with Mr. Neeraj Gupta, Advocate. For respondents No. 1 to 3: Mr. G.D. Verma, Senior Advocate, with Mr. B.C. Verma, Advocate. Deepak Gupta, J. 1. This Regular Second Appeal has been admitted on the following substantial questions of law: 1. When the factum of exchange of title to the land is neither evidenced by any legal document nor entries in the revenue record are shown to be lawfully substituted, could the factum of exchange having taken place be assumed merely on the basis of the entries incorporated during settlement. Could the principle that the entries in the revenue record have 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. presumption of truth wrongly applied when such entries were not shown to be lawfully substituted either on the basis of lawful order or having any other lawful basis? 2. Whether the entries appearing in the revenue record showing the possession on account of “Davedhar Tabadla” be held to mean that any exchange between the parties has taken place in lawful manner: Are not entries in the revenue record particularly Exhibits P-8 and P-10 misread and misappropriated to hold that there was a valid exchange of title between the parties to the suit? 3. When the party to the suit, who is alleged to be the maker of the admissions in the previous judicial proceedings, alleges and proves that such alleged admissions were made on account of mistake due to lack of communication and claimed that such admissions are untrue and made in mistaken belief? Can such admissions be held to be binding on such party thereby holding the transfer of the title merely on the basis of such erroneous admission alleged to have been made in the previous proceedings? 4. Whether one of the party to the suit who has allegedly made admission in the previous proceedings, could bind all the other parties to the suit who are not party to the previous proceedings, were not the courts below competent to take into consideration such facts as well as explanation of the maker of the admissions to hold that such admissions are not binding? 5. Whether the report of the Local Commissioner appointed for demarcation of the properties could be taken into consideration as an evidence, without deciding the objections raised by one of the aggrieved party to the proceedings in the suit, was not it the duty of the court to have first decided the objections to the Local Commissioner’s Report as well as affording the opportunity to the Objector to cross-examine the Local Commissioner, before such report of the Local Commissioner to be received in evidenced and relied upon? Are not findings of the courts below based on inadmissible evidence and stands vitiated? 6. Whether the plea of the Appellants of adverse possession could have been rejected merely on the ground that at the time when the structures were raised, the appellants believed that such land belong to them thereby lacking animous of hostility, are not the overt acts of enclosing the said property by barbed wires and raised structure thereupon without objection from the concerned person amounts to exercising the animous of hostility and thereby satisfying the basic ingredients of holding such property by adverse possession, are not the findings of both the courts below rendered contrary to the said facts and law erroneous and perverse? 7. Whether the findings of both the courts below regarding maintainability of the suit having barred by limitation and further the plaintiff having failed to establish to file the present suit based on erroneous assumptions of facts, wrong application of law hence stands vitiated?” 2. This appeal has been filed by some of the original plaintiffs or their successors. Similarly, the respondents are the original defendants No. 1 to 3 and the legal heirs of defendant No. 4. For the purposes of this appeal, they are being referred to as the plaintiffs and defendants as reflected in the original pleadings. 3. Om Prakash and Lekh Raj, i.e. plaintiffs No. 1 and 2 were sanctioned Nautor land measuring 9 bighas 7 biswas, comprised in khasra No. 435/395. Another portion of land out of the same khasra No. 295, comprised in khasra No. 432/295, measuring 19 bighas 11 biswas was allotted to Shri Prabhu Lal Negi, original defendant No. 4. These two lands adjoin each other. Plaintiffs No. 1 and 2 also purchased 2 bighas and 11 biswas of land comprised in khasra No. 309 in the year 1963 from one Shri Inder Dass. Another piece of land measuring 5 bighas 16 biswas, comprised in khasra No. 310 was purchased by plaintiffs No. 1 and 2 from Rattan Dass vide mutation dated 28.12.1963. Subsequently, plaintiffs No. 1 and 2 transferred the land comprised in khasra Nos. 309 and 310 in favour of the plaintiffs No. 3 and 4, respectively. It would be pertinent to mentioned that plaintiffs No. 3 and 4 are the wives of plaintiffs No. 1 and 2, respectively. This transferred was executed on 9.6.1966. 4. Settlement proceedings in the village took place during the period 1984-85 and during these settlement proceedings, old khasra No. 435/295 was allotted khasra Nos. 896 and 900. Khasra No. 309 was allotted khasra No. 898 and khasra No. 310 was allotted khasra No. 910. Khasra No. 432/295, which was allotted to defendant No. 4 was given four khasra numbers, i.e. 901, 902, 903 and 904. Thus, as per the record, the plaintiffs were owners of khasra Nos. 896, 898, 900 and 910, whereas defendant No. 4 was owner of khasra Nos. 901, 902, 903 and 904. During these settlement proceedings, the plaintiffs No. 3 and 4 were shown in possession of khasra No. 901 and 903, whereas the defendant No. 4 was shown in possession of khasra No. 898 on the basis of an exchange, which allegedly took place between the parties. 5. The case of the plaintiffs is that they had not exchanged their land in khasra No. 898 with the land of the defendant No. 4 in khasra Nos. 901 and 903. According to the plaintiffs, they were always in possession of khasra Nos. 901 and 903 and they had constructed a building thereupon and fenced this land. Therefore, they had become owners by way of adverse possession of the land comprised in khasra Nos. 901 and 903 and the entries in revenue record, showing defendant No. 4 to be in possession of the land comprised in khasra No. 898 on the basis of an exchange, were wrong and illegal. They, therefore, claim to be owners in possession of khasra No. 898 also. 6. Another undisputed fact is that defendant No. 4 vide sale deed dated 21.10.1991 sold his entire land including land comprised in khasra Nos. 901 and 903 to defendants No. 1 to 3. The case of the plaintiffs is that defendant No. 4 had no right in the land comprised in khasra Nos. 901 ad 903, since they had become owners of the same by way of adverse possession. This led to various disputes between the parties and the plaintiffs moved an application before the Assistant Collector, Rampur Bushahr, seeking correction of the revenue entries and submitted similar application before the Settlement Officer. Defendants No. 1 to 3 lodged a complaint with the Police Station Rampur that the plaintiffs No. 3 and 4 had tarried to interfere in their possession over khasra No. 898. Then, plaintiff No. 3 approached a counsel to file a suit in regard to the land comprised in khasra No. 898. It was alleged that due to lack of communication, in this suit a wrong admission was made that there had been exchange of land between the parties in respect of khasra Nos. 901 and 903 and khasra No. 898. Plaintiffs alleged that the admission was wrongly made. On the basis of these facts, the plaintiffs filed a suit praying that decree for injunction be passed restraining the defendants from claiming any right title or interest in respect of land comprised in khasra Nos. 901 and 903 or interfering in the possession of the said land and also in respect of khasra No. 898. To put it in a nutshell, the plaintiffs claim to have become owners of khasra Nos. 901 and 903 by way of adverse possession and claim that they never exchanged their land comprised in khasra No. 898 with the land of the defendants. 7. The suit was contested on many grounds including the ground that the same was time barred. On facts, it was alleged that the land comprised in khasra No. 898, which was originally owned by the plaintiffs, was exchanged with the land of the defendant No. 4 comprised in khasra Nos. 901 and 903 and, therefore, the plaintiffs became owners of the land comprised in khasra Nos. 901 and 903 and defendant No. 4 became owner of the land comprised in khasra No. 898, which was thereafter transferred to defendants No. 1 to 3. It was not disputed that the plaintiffs No. 3 and 4 had built their house over the land comprised in khasra Nos. 901 and 903, but according to the defendants, this was done with the consent of defendant No. 4 after the completion of negotiations of exchange between the parties. 8. Following issues were framed by the learned trial Court: 1. Whether the plaintiffs are owners-in-possession of the suit land? …OPP 2. Whether the revenue record prepared during settlement in respect of the suit land is illegal, wrong and without jurisdiction? …OPP 3. Whether khasra Nos. 901 and 903 (new) formed part of khasra No. 435/95 (old), if so, its effect? …OPP 4. If issue No. 3 is not proved, whether the plaintiffs No. 1 and 2 are in possession of khasra No. 901 and 903 in Chak Bahli since the year 1964 by way of adverse possession and have become owner thereof as alleged? …OPP 5. Whether there has been no exchange between the plaintiffs and defendant No. 4 in respect of old khasra Nos. 901 and 903 and 898 situated in Chak Bahli, as alleged? …OPP 6. Whether the plaintiffs are entitled to the relief of injunction? …OPP 7. Whether the suit is bad for mis-joinder of necessary parties? …OPD 8. Whether the suit is not maintainable as alleged? …OPD 9. Whether the plaintiffs are estopped from filing the present suit on account of their acts, conduct and admissions? …OPD 10. Whether the suit is barred by limitation? …OPD 11. Whether the suit is not properly valued for the purpose of Court fees and jurisdiction? ..OP-Party. 12. Relief. The learned trial Court decided issues No. 1 to 4, 6 and 11 against the plaintiffs, issues No. 5, 8 to 10 were decided in favour of the defendants and issue No. 7 against the defendants. The suit was, accordingly, dismissed. 9. The plaintiffs being aggrieved by the judgment and decree of the learned trial Court dated 30.4.1998 in case No. 87-1 of 97/94, filed an appeal in the Court of District Judge, Kinnaur at Rampur Bushahr. This appeal was registered as Civil Appeal No. 27 of 1998 and was dismissed by the learned District Judged on 15.1.1999. Hence, the present appeal. 10. I have heard Mr. Bhupinder Gupta, learned senior counsel on behalf of the appellants and Mr. G.D. Verma, learned senior counsel on behalf of the respondents. I have also gone through the record of the case in detail. 11. The first ground raised by the appellants is that there is no document of exchange and as such, the revenue entries regarding the exchange are illegal and incorrect. In missal haquiyats Ex. P-8 and P-10, of the year 1986-87, it is reflected that Smt. Usha Rani and Smt. Sushila Rani, plaintiffs No. 3 and 4, have exchanged their land comprised in khasra Nos. 901 and 903 with defendant No. 4 on account of exchange. It has been strenuously contended on behalf of the appellants that such transfer of land had to be made by a registered document and there is nothing on record to show when the exchange took place. Reliance has been place on a photocopy of Ex. PW-11/A, allegedly executed by defendant No. 4, in which defendant No. 4 had stated that prior to the year 1986, he was the owner of khasra Nos. 901 ad 903 and that in the year 1986, he was given land comprised in khasra No. 898 in exchange by plaintiffs No. 3 and 4. Reliance has also been placed on Section 118 of the Transfer of Property Act, which provides that a transfer of property in completion of an exchange can be made only in the manner provided for the transfer of such property by sale. On this basis, it is contended that no exchange could have made without a document executed in writing and duly registered. Reliance in this behalf has been placed on the judgment of the Punjab and Haryana High Court in Satyawan and others versus Raghbir, AIR 2002 Punjab and Haryana 290. 12. The first question which arises is whether any exchange took place and if so, when did such exchange take place. Two documents, Ex. P-8 and P-10, have already been referred to above, which are the documents duly entered during the settlement proceedings. Plaintiffs No. 3 and 4 moved an application for correction of revenue entries before the Settlement Collector, wherein it was mentioned that the applicants had got land in khasra Nos. 901 and 903 in exchange of the land comprised in khasra No. 898 from Prabhu Lal. The appellants- plaintiffs had made a crude attempt to show that these lines were not typed in the original version, but appeared to have been typed later on. This version cannot be believed. The documents, which are filed in court, cannot be tampered with easily and it is obvious that such admission had been made by the plaintiffs in the application. Not only this, but as admitted by the plaintiffs themselves, Smt. Usha Rani had filed a suit in the court of Sub Judge, Rampur, copy of the plaint is Ex. DB, where in also she had specifically admitted that she and Sushila Rani were in actual and physical possession of land comprised in khasra Nos. 901 and 903, which they had got in exchange from the original owner, Shri Prabhu Lal. It is, thus, obvious that admission was made not at one place but at two places, once only by Usha Rani and once both by Usha Rani and Sushila Rani. 13. The plaintiffs, having specifically claimed that they had obtained possession and ownership of the land comprised in khasra Nos. 901 and 903 in exchange of land comprised in khasra No. 898, cannot now turn around and claim that they had become owners of land comprised in khasra No. 901 and 903 by way of adverse possession and they also continue to be in possession of khasra No 898 as the owners thereof. 14. Both the Courts below have come to a finding of fact that the plaintiffs have failed to explain this admission made previously. It would be important to note that Usha Rani, who had made the admission in the pleadings, did not even care to step into the witness box. It was only she who could have explained the admission made by her in the previous suit. The suit filed by Usha Rani was dismissed in default on 12.4.1994 and, thereafter, the suit out of which the present proceedings arise, was filed on 7.7.1994. The original suit remained pending for about one and a half years and there is no explanation why no application was moved during the pendency of the earlier suit to withdraw the admission. Similarly, Sushila Rani has also not stepped into the witness box. The finding of facts recorded by the Courts below is based on evidence and cannot be interfered in second appeal. 15. The courts below have rightly held that PW-1, husband of Usha Rani, could not explain the admission made by her. As observed by the learned courts below, the husband does not state that he was present when instructions were given to the counsel to draft the previous suit. It is more than apparent that the present case is a false attempt to get out of the admission earlier made. Not only this, but to get out of the admission made in the application, Ex. DA, filed before the Settlement Officer, the plaintiffs examined Tek Chand, PW-12, a typist who stated that the document was typed by him on the instructions of Shri N.C. Chauhan, Advocate, Rampur and he never typed the words which amounted to admission of exchange. The application is dated 1.10.1992 and Shri Tek Chand appeared in the witness box on 17.3.1998. The courts below rightly held that neither he nor Shri N.C. Chauhan could have remembered what was got typed five years earlier. 16. The law with regard to admissions is very clear. Any admission made by any party in previous proceedings can be used against the said party. Such an admission, however, by itself is not conclusive and a party can lead evidence to show that the admission was wrong or incorrect. It is not necessary to cite all the judgments, but reference is being made to Banarsi Das versus Kanshi Ram, AIR (50) 1963 Supreme Court 1165; Basant Singh versus Janki Singh, AIR (54) 1967 Supreme Court 341; Ambika Prasa Thakur and others versus Ram Ekbal Rai, AIR (53) 1966 Supreme Court 605; Thiru John versus The Returning Officers and others, AIR 1977 Supreme Court 1724; Mahendra Manilal Nanavati versus Sushila Mahendra Nanavati, AIR (52) 1965 Supreme Court 364. The law is very clear that a party cannot wriggle out of the admission made by it. It may explain or show that the admission is wrong. However, in the present case, as held by both the courts below there is no reason why the plaintiffs should not be bound by the admission which was clear and unequivocal that Usha Rani and Sushila Rani had got the land in khasra Nos. 901 and 903 from Prabhu Lal in exchange of their land comprised in khasra No. 898. 17. It has also been contended on behalf of the appellants that plaintiffs No. 1 and 2 are not bound by the admission of plaintiff No. 3. In this behalf, reliance has been placed on the judgment on the Apex Court in Sitaram Motilal Kalal versus Santanuprasad Jaishanker Bhatt, AIR (53) 1966 Supreme Court 1697. This contention cannot be accepted. As pointed out above plaintiffs No. 1 and 2 are none else but the husbands of plaintiffs No. 3 and 4. It is also not disputed that plaintiffs have constructed a house on the land comprised in khasra Nos. 901 and 903. This land was mutated in favour of the plaintiffs No. 3 and 4, but plaintiffs No. 1 and 2 have built the house on the land, and, therefore, it is more than apparent that the plaintiffs No. 1 and 2 were we aware of the exchange. 18. In fact, from the evidence on record, it is more than apparent that the exchange took place much prior to the year 1970. The plaintiffs now want to take advantage of the fact that in the revenue record the exchange, for the first time, was mentioned in the year 1965-66. Since, the appellants are admittedly in possession of land comprised in khasra Nos. 901 ad 903, which was earlier owned by Prabhu Lal and was granted to him as Nautor, it is more than probable that the plaintiffs have willingly exchanged their land in khasra No. 898 with that of Prabhu Lal in khasra Nos. 901 and 903. In fact, the respondents have been found to be in possession of the land comprised in khasra No. 898. 19. One of the reasons which weighed with both the courts below to come to the conclusion that the respondents are in possession of khasra No. 898 is the report of the Local Commissioner. However, it would be pertinent to mention that the finding with regard to the possession is not solely based on the report of the Local Commissioner. It has been strenuously contended on behalf of the appellants that without first deciding the objections filed by the appellants against the report of the Local Commissioner, the report of the Local Commissioner could not have been accepted. In this behalf, reliance has been placed on two judgments of this Court in Mst. Rattani & others versus Dharam Chand alias Dharman & others, 2000 (1) SLJ 52 and a Division Bench judgment in Ditar Singh versus Waryam Singh, 2004 (1) Cur. L. J. 151. In my view, there can be quarrel with the proposition of law laid down in these cases, but in the present case, the aforesaid judgments are not attracted. In para 20 of the learned trial Court’s judgment, it has dealt with the report of the Local Commissioner and the objections have been considered and rejected. The learned trial Court has come to the conclusion that the objections to the Local Commissioner’s report cannot be accepted to be correct since the plaintiffs led no evidence to impeach the veracity of the report of the Local Commissioner. There is no law which says that the objections must be first decided and, thereafter, only the suit should be decided. The court may decide the objections to the report of the Local Commissioner along with the main suit itself. In any event other than the report of the Local Commissioner, there is sufficient material on record to show that it is the respondents, who are in possession of the land comprised in khasra No. 898. 20. Another argument raised is that oral exchange could not be made. First of all, I am of the view that the exchange took place much prior to the year 1970. At that time, the provisions of para 2 and 3 of Section 64 were not applicable to the State of Himachal Pradesh. Therefore, there could be oral sale at the relevant time. Section 118 of the Transfer of Property Act reads as follows: “118. “Exchange” defined. – Where two persons mutually transfer the ownership of one thing for ownership of another, neither thing or both things being money only, the transaction is called an “exchange”. A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.” 21. A bare reading of this provision shows that an exchange has to be made in the same manner as is provided for a sale. When in 1970, a sale could be made orally, there is no reason why the exchange could not have been done orally. Reference may be made to a judgment of Punjab and Haryana High Court in Paramjit Sigh versus Ratti Ram, AIR 2005 Punjab and Haryana 4 and a judgment of this Court in Gulab Singh & others versus Dilbaru & another, AIR 1989 Himachal Pradesh 23, which both lay down that oral exchange could be effected between persons residing in such areas. 22. In view of the above discussion, all the questions of law are answered against the plaintiffs and in favour of the defendants. I find no merit in the appeal which is, accordingly, dismissed, with costs assessed at Rs. 5,000/-. (Deepak Gupta) Judge September 22, 2010 (rajni)