RSA No.2766 of 2003 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No.2766 of 2003 Date of Decision : 22.12.2008. Pritam Singh and others ..Appellants. Vs. Mohinder Singh and others ..Respondents. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr. Onkar Singh, Advocate for the appellants. Mr. Sarju Puri, Advocate for the respondents. RAKESH KUMAR JAIN, J. The plaintiffs are in second appeal against the judgment and decree of both the Courts below whereby their suit for declaration and permanent injunction has been dismissed. The case of the plaintiffs is that they have become exclusive owners in possession in equal shares of the land detailed in the head note of the plaint on the basis of memorandum of mutual partition dated 2.6.1971 and sought permanent injunction to restrain defendants from alienating any portion of Khasra No.960 (8-11), 961(6-12), 962(12-12), 963(8-17) total measuring 36 Kanals 12 Marlas. It is alleged that Karam Singh, father of the plaintiffs, was the owner in possession of the suit property to the extent of 1/3rd share. Ram Kishan, father of defendants No.1 to 3 and husband of defendant No.4, was the owner in possession of the suit property to the extent of 2/3rd share. Karam Singh, father of the plaintiffs died about 22 years ago and Ram Kishan, father of defendants No.1 to 3 and husband of RSA No.2766 of 2003 -2- defendant no.4 died about 18 years ago. Their estate devolved upon the plaintiffs and defendants. It is further alleged that Karam Singh and Ram Kishan were real brothers who effected a partition of the suit land during their life time and executed a memorandum of mutual partition dated 2.6.1971 which was thumb marked and attested by Ramji s/o Gainda. As per the case of the plaintiffs, Karam Singh was given 24 Kanals 2 Marlas of land and Ram Kishan was given 18 Kanals 8 Marlas of land. More land was given to Karam Singh as it was barren. It was further alleged that the factum of mutual partition could not be incorporated in the revenue record in view of the cordial relations between the parties and their predecessors in interest. However, with the rise in prices of the immovable property, the defendants have intentionally denied the contents of mutual partition dated 2.6.1971, therefore, declaration was sought that the plaintiffs were to be declared exclusive owners in possession of the suit property and the defendants be restrained from alienating any part of the said land. In the written statement, besides taking preliminary objections, it was alleged on merits that the memorandum of mutual partition dated 2.6.1971 is forged and fabricated. It is denied to have been executed as alleged nor it was ever thumb marked by Ram Kishan. It was alleged that partition deed is ambiguous and does not disclose the identity of land. The parties to the suit are still in joint possession of the joint land and proceedings in respect of the partition are still pending in the Court of Tehsildar, Phillaur. From the pleadings of the parties, following issues were framed by the trial Court: (i)Whether the plaintiffs are entitled for declaration as prayed for? OPP. (ii)Whether the plaintiffs are entitled for permanent injunction RSA No.2766 of 2003 -3- as prayed for? OPP. (iii)Whether they took the partition of the suit property on 2.6.1971? OPP. (iv)Whether the suit is time barred? OPD. (v)Whether the suit is not maintainable in the present form? OPD. (vi)Whether the plaintiffs are barred by their own act and conduct to file the present suit? OPD. (vii)Whether the suit is bad for misjoinder and non joinder of necessary parties? OPD. (viii)Whether the memorandum of partition dated 2.6.1971 is forged and fabricated document? OPD. (ix)Relief. The trial Court dismissed the suit vide its judgment and decree dated 1.10.2001 observing that the memorandum of partition (Ex.P1) does not bear any khasra number and is also silent in respect of other two brothers of Ram Kishan and Karam Singh. It was held that partition deed was never effected in the revenue record. The first Appellate Court also found that document Ex.P1 does not bear any Khasra Number and as such nothing is clear as to which land has been given to predecessor in interest of the plaintiffs and which part of the land has fallen to the share of predecessor in interest of the defendants. It was also observed that the document Ex.P1 is only between Karam Singh and Ram Kishan though they had two other brothers Bishan and Rulia. Rulia had died and his property was inherited by his widow Dhan Kaur which is apparent from the copy of jamabandi (Ex.D3) for the year 1969-70. In the absence of the other two right holders of the property, it cannot be said to be complete partition between the parties and moreover, factum of partition was never carried out RSA No.2766 of 2003 -4- in the revenue record. The lower Appellate Court also held that memorandum of partition is an act in presenti, therefore, it required registration because as a matter of fact it was an exchange of property of more than Rs.100/-. Sh.Onkar Singh, learned counsel appearing on behalf of the appellants has vehemently contended that the property in suit was orally partitioned between the parties and only a memorandum was executed on 2.6.1971 which is enforceable even in the absence of its non-registration. On the contrary, learned counsel for the respondents has submitted that even if it is presumed that an oral partition was effected between Karam Singh and Ram Kishan, even then said partition cannot be relied upon because it was never carried out in the revenue record nor the said oral partition which has been reduced into writing vide the memorandum of partition (Ex.P1) is certain because it does not bear Khasra numbers which are said to have been taken by both the brothers Karam Singh and Ram Kishan. It was thus, argued that document Ex.P1 is totally vague and can not be relied upon. It was also submitted that the property in dispute has been jointly owned by all the four brothers namely Karam Singh, Ram Kishan, Bishan and Rulia but document Ex.P1 is silent about the other two brothers Bishan and Rulia and is thus, bad for partial partition. I have heard learned counsel for the parties and perused the record with their assistance. The document of partition Ex.P1 dated 2.6.1971 is totally silent about the details of Khasra numbers of the land having been partitioned and exchanged by the predecessor in interest of the plaintiffs and the defendants. RSA No.2766 of 2003 -5- I am in total agreement with the counsel for the respondents that if khasra numbers are not mentioned in the document Ex.P1, it becomes a void contract being uncertain. In this regard, reliance can be placed on a decision of this Court in M/s Dharam Pal Mohinder Nath Vs. Nirmal Singh 1999 (2) CCC 311 (P&H). Moreover, if it is a case of exchange then it is regulated by the provisions of Section 118 of the Transfer of Property Act, 1872 (for short `the Act') which defines the exchange as under : “When two persons mutually transfer the ownership of one thing for the 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.” Oral exchange in the States of Punjab and Haryana is permissible but if it is reduced into writing, it requires stamp duty and registration as held by this Court in the case of Shiv Ram Vs. Smt.Bimla Devi 2000 (2) CCC 333 (P&H). Further more, in the case of Satyawan Vs. Raghbir 2002(2) CCC 381 (P&H), it was held that oral exchange of immoveable property of more than Rs.100/- requires registration. Since the document Ex.P1 is uncertain and vague and coupled with the fact that it is not entered in the revenue record and is unregistered, the same is unreliable and no relief can be granted to the plaintiffs on the basis of said document. Thus, in my view, the Courts below while recording concurrent finding of facts in respect of the document Ex.P1, has committed no error of law. No substantial question of law has been raised by the counsel for the RSA No.2766 of 2003 -6- appellants in the present appeal. Thus, the present appeal being devoid of any merits, is hereby dismissed without any order as to costs. (Rakesh Kumar Jain) 22.12.2008 Judge Meenu