R.S.A.No.3053 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3053 of 2008 Date of Decision : 28.7.2009 Sube Singh ...Appellant Versus Rakam Chand and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Vikram Singh, Advocate, for the appellant. Mr. Madan Pal, Advocate, for the respondents. HEMANT GUPTA, J. (ORAL) The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for declaration challenging decree dated 17.3.1993 recognizing exchange between the parties was set aside as exchange was not found to be acted upon. The plaintiffs are owners of land measuring 22 Kanals 16 Marlas, whereas the defendant is owner of 21 Kanals 2 Marlas of land on the basis of decreed suffered by his father in his favour on 13.2.1993. Earlier the defendant suffered a decree on 17.3.1993 of exchange of his land measuring 21 Kanals 2 Marlas with the land of the plaintiffs measuring 22 Kanals 16 Marlas. But in previous suit No.195 of 2003 filed on 19.6.1996 decided on 11.9.2003, it was found that exchange has not been acted upon. The said decree passed by the learned trial Court R.S.A.No.3053 of 2008 2 was affirmed by the learned first Appellate Court on 24.9.2004 vide judgment Ex.P-17, wherein it was held to the following effect : “13. Taking the appeal from any angle, I am of the view that the same is not maintainable because plaintiffs have fully proved that after suffering of the exchange decree dated 17.3.1993, parties did not act upon the same. There is no doubt that the entries in the revenue record was made during the pendency of the suit, but the actual and physical possession of the parties remained on their respective lands.” During the pendency of the aforesaid suit, the plaintiffs filed the present suit for declaration challenging the aforesaid decree dated 17.3.1993 as the decree which has not been acted upon and, therefore, the same is not binding. Both the Courts have decreed the suit on the basis of the statements of Sube Singh (DW-3) and Ram Singh (DW-2). Learned counsel for the appellant has vehemently argued that the present suit is barred in terms of Order 2 Rule 2 of the Code of Civil Procedure. It has been held by the Courts below that earlier suit was for injunction, whereas the present suit is for declaration, as the defendant has violated the title, status or legal character of the plaintiffs. Therefore, the cause of action in the suit for injunction and the suit for declaration is separate and distinct. I do not find any merit in the argument raised by the learned counsel for the appellant. The earlier suit was for injunction wherein the issue of possession came for consideration. The plaintiff has sought protection of his possession in the said suit, whereas in the present suit R.S.A.No.3053 of 2008 3 for declaration, the legality and validity of the decree dated 17.3.1993 has been made subject matter of challenge. Such challenge has found favour by the Courts below on the basis of the statements of the defendant and his witnesses. Findings have been recorded by the Courts below on the basis of evidence on record. Once the exchange has not been acted upon, the Courts have not committed any illegality in setting aside the same. In view thereof, I do not find that any substantial question of law arises for consideration of this Court on the basis of findings recorded by the Courts below. Dismissed. 28.7.2009 (HEMANT GUPTA) Vimal JUDGE