R.S.A. No. 1249 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 1249 of 2010 (O&M) Date of decision : 25.8.2010 ... Surinder Singh ................Appellant vs. Pala .................Respondent Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Nakul Sharma, Advocate for the appellant ... K.C. Puri, J. This is regular second appeal directed by the plaintiff- appellant against the judgment dated 13.11.2009 passed by Ms.Harpreet Kaur, Additional District Judge, Ferozepur, vide which the appeal preferred by the plaintiff-appellant against the judgment dated 8.10.2008 passed by Sh. Jatinder Pal Singh Wahniwal, PCS, Civil Judge (Senior Division), Ferozepur, was dismissed. Plaintiff filed suit for possession against defendant with the allegation that father of the plaintiff was in possession of the plot measuring 10 ½ marlas as shown in red colour in the site plan. The defendant is in possession of the plot measuring 6 marlas. The house of the defendant comprised three rooms, bathroom, latrine, hand- R.S.A. No. 1249 of 2010 -2- pump, electric motor and boundary wall. The exchange deed/affidavit was executed by the defendant on 20.1.1998 in the presence of witnesses whereby the plaintiff and defendant exchanged the aforesaid houses with each other. The defendant paid Rs.22,500/- to plaintiff in lieu of excess land measuring 4 ½ marlas in the house of the plaintiff. The defendant did not give possession of the house to the plaintiff despite repeated requests but the plaintiff had delivered possession of his house measuring 10 ½ marlas. This exchange deed is null and void and is not binding on the rights of the plaintiff as defendant did not act as per exchange deed and had not handed over the possession of house measuring 6 marlas. The plaintiff asked defendant many times to hand over the possession of the house in question to the plaintiff, but to no effect. Hence the suit. Upon notice, defendant filed the written statement taking preliminary objections that suit is time barred, false and frivolous and that the plaintiff has not come to the Court with clean hands. He had suppressed the material facts. In fact after exchange the possession of the land in question was taken by the plaintiff from defendant in presence of witnesses. Now, Jagir Kaur widow of Chanan Singh, who happens to be mother of plaintiff is residing in this house. Therefore, the suit of the plaintiff has become infructuous and is not maintainable. The factum of exchange was admitted. The transfer of possession was also admitted. Replication was filed controverting the stand taken in the written statement and reiterating the averments made in the plaint. From the pleadings of the parties, following issues were R.S.A. No. 1249 of 2010 -3- framed:- 1. Whether the plaintiff is entitled to the decree for possession of the suit property? OPP. 2. Whether the plaintiff is entitled to the permanent injunction as prayed for? OPP. 3. Whether the suit is time barred? OPD 4. Whether the suit is false, frivolous and vexatious to the knowledge of the plaintiff? OPD 5. Whether the plaintiff has not come to the Court with clean hands? OPD 6. Whether the suit is not maintainable in the present form/ OPD 7. Relief. In support of his case, Surinder Singh – plaintiff himself appeared as PW-1 and also examined PW-2 Kala Singh, PW-3 Swaran Singh, PW-4 Satpal and closed the evidence. In rebuttal, defendant Pala Singh appeared as DW-1 and closed the evidence. Learned trial Court returned the findings on all the issues against the plaintiff and consequently, dismissed the suit of the plaintiff vide judgment dated 8.10.2008 passed by Sh. Jatinder Pal Singh Wahniwal, PCS, Civil Judge (Senior Division), Ferozepur. Feeling dissatisfied with the above said judgment, the plaintiff-appellant filed the Ist appeal and the same was dismissed vide judgment dated 13.11.2009 passed by Ms.Harpreet Kaur, Additional District Judge, Ferozepur. Still feeling dissatisfied with the judgments dated 13.11.2009 R.S.A. No. 1249 of 2010 -4- and 8.10.2008, referred to above, the plaintiff-appellant has preferred the present regular second appeal. The plaintiff-appellant in paragraph No. 6 of the grounds of appeal has mentioned that following substantial questions of law are involved in the present appeal:- i) Whether the Appellate Court could summarily dismiss the appeal without discussing the issues and without discussing the evidence in summarily manner? ii)Whether the learned Courts below are bound to discuss the evidence brought on record by both the parties while deciding issues? iii)Whether judgments and decree of both the Courts below stands judicious scrutiny on their proper judgment in law in view of the provisions contained in Section 20 of CPC? iv)Whether the learned lower Court has dealt with the matter in judicial mind and whether the issues have been decided correctly? v) Whether the appellant can be relieved on account of basic principle of law by both the learned Courts below? vi)Whether the appellant was in possession of the suit property? vii)Whether the appellant is entitled for the relief claimed? Learned counsel for the appellant has submitted that exchange deed is invalid as it was never acted upon. The possession of the house of the defendant which was given in exchange to the plaintiff, was never handed over. So, the said exchange is invalid R.S.A. No. 1249 of 2010 -5- document. Both the Courts below have misread and misinterpreted the evidence on the file. I have considered the submissions made by counsel for the appellant. The factum of exchange has been pleaded by the plaintiff, which has been admitted by the defendant. Both the Courts below have returned a finding of fact that oral exchange accompanied by possession is permissible and that has taken place. It is also held by both the Courts below that plaintiff has received an amount of Rs.22,500/- in lieu of the lessor area of the land received in exchange by the plaintiff. So, that being a finding of fact does not call for any interference. There is nothing on the file to show that judgment of both the Courts below is a result of misreading and misinterpreting the evidence on the file. It so seems that after the exchange, the plaintiff now is not in good terms with his mother and on that account he is trying to resile from the exchange which has been duly acted upon. Both the Courts below have discussed the oral, as well as, documentary evidence thoroughly. It cannot be said that both the Courts below had dismissed the suit of the plaintiff summarily. Both the Courts below have applied their judicial mind and had decided all the issues correctly. The plaintiff is not entitled to any relief on the facts of the present case. In view of the above discussion, I have no hesitation in holding that no substantial question of law has arisen in the present appeal. Consequently, the appeal is without any merit and the same R.S.A. No. 1249 of 2010 -6- stands dismissed. All the miscellaneous applications also stand disposed of. ( K.C. Puri ) 25.8.2010 Judge chugh