IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 819 of 1989 Date of Decision: 11.3.2010 Ujaggar Singh. ....... Appellant through Shri Arun Jain, Senior Advocate with Shri Amit Jain, Advocate. Versus Harbans Singh and others. ....... Respondent no.1 through Shri Kanwaljit Singh,Senior Advocate with Shri Harmanjit Singh Jugait, Advocate. Respondent nos. 2, 3,5 & 6 exparte. Name of respondent no.4 deleted vide order dated 23.8.1989. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 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? .... Mahesh Grover,J. One of the plaintiffs has filed this second appeal. He along with Saudagar Singh, now arrayed as proforma respondent no.6, had filed a suit for possession against the defendants. It was pleaded that originally land measuring 3 kanals 2 marlas comprised in khewat/khatauni nos. 349/383, khasra no. 41//4/1 situated in village Kotla Nihang, Tehsil & District Ropar was owned by Santokh Singh and Pritam Singh -defendant nos.4 & 5; that R.S.A.No.819 of 1989 -2- .... defendant no.5-Pritam Singh is the father of the plaintiffs that the aforesaid land fell to the share of defendant no.5 being co-sharer as defendant no.4 was compensated with other land; that out of this land, he had sold land measuring 1 kanal 14 marlas to defendant no.1 vide sale deed dated 17.2.1971; that the remaining land which was comprised in khasra no.41/4/1/2 was alienated by defendant no.5 to the plaintiffs & defendant nos. 2 & 3 vide two sale deeds, one executed in the year 1981 and the other in the year 1989; that the plaintiffs came to know that the land measuring about 5 marlas out of khasra no.41/4/1/2 on 18.7.1984 had been encroached upon by defendant no.1; that he was asked to remove the said encroachment, but he did not do so and hence, they were constrained to institute the present proceedings. Defendant no.1, upon notice, appeared and contested the suit. He admitted that he had purchased 1 kanal and 14 marlas of land comprised in khasra no.41/4/1 from defendant no.5; but pleaded that he also took possession of 5 marlas of land comprised in khasra no.41/4/1/2, which land was actually exchanged by him with defendant no.5 for the sake of expedience and straightening the plot as its original shape was angular. On the pleadings of the parties, as many as eight issues were framed by the Senior Sub Judge,Ropar (hereinafter described as `the trial Court') and the parties were afforded opportunities to lead their respective evidence. After appraisal of the evidence on record, the trial Court dismissed the suit with costs vide judgment and decree dated 3.3.1987. R.S.A.No.819 of 1989 -3- .... Feeling aggrieved, the plaintiffs preferred an appeal which was also dismissed by the Additional District Judge, Rupnagar (referred to hereinafter as `the first appellate Court') resulting in the filing of the instant appeal. The primary reasoning adopted by the Courts below was that the sale deed in favour of defendant no.1 was of the year 1971 and there was evidence to show that construction had been raised in that year itself and the sale deeds in favour of the plaintiffs & defendant nos. 2 & 3 were of the years 1981 and 1983, i.e., much after the sale deed in favour of defendant no.1 and that the encroachment, if any, existed prior thereto and in case, there was any dispute regarding encroachment which was to the knowledge of defendant no.5, it was he who ought to have raised the dispute, but he chose not to do so and he never appeared as a witness in the instant proceedings even though he could have done so and consequently, an adverse inference was drawn regarding all these facts to dismiss the suit as well as the appeal of the plaintiffs. That apart, the Courts below reasoned that even though, the exchange made qua the land as reflected in Exhibit D1 was not a document which could be relied upon, but it was sufficient to point out to the possession of defendant no.1. The ambiguity in the description of the area mentioned in the sale deed in favour of the plaintiffs was also one of the factors which weighed with the Courts below in declining their prayer. The question of limitation has also been held against the plaintiffs. R.S.A.No.819 of 1989 -4- .... Assailing the findings of the Courts below, learned counsel for the plaintiff-appellant has contended that there was no dispute regarding the sale deed in favour of the plaintiffs, as also in favour of defendant no.1, but the question was as to whether the latter had encroached five marlas of land belonging to the former and if such a fact was established, whether they were entitled to possession thereof regardless of the fact that the suit was filed belatedly because limitation to assert their possession on the basis of ownership cannot be subjected to law of limitation, more-so when defendant no.1 has not pleaded and proved possession adverse to them. He further contended that Exhibit D1 was rightly discarded by the Courts below as it was not a registered document and, therefore, the effect of such a document regarding possession also ought to have been held against defendant no.1 and in favour of the plaintiffs. On the other hand, learned counsel for defendant no.1 contended that since 1971 when defendant no.1 had constructed his house regarding which defendant no.5 was having knowledge and it was never questioned by him all throughout and consequently, the plaintiffs were precluded from filing the instant suit in the year 1984. He further contended with reference to Exhibit D2 which is the site plan that the plot which was sold to defendant no.1 was angular and it was with the consent of the parties and to remove an irritant which had crept in the relationship between them, that they agreed to straighten the plot and an area equal to five marlas was exchanged between defendant no.1 and defendant no.5. He further contended that the dispute, if at all, could have been with defendant no.5, R.S.A.No.819 of 1989 -5- .... who never questioned the possession of defendant no.1 for as many as thirteen years and it is now the subsequent vendees, i.e., the plaintiffs, who are the sons of defendant no.5 had no locus standi to file the suit. It was submitted that defendant no.5, despite the fact that he was a party to the suit, did not chose to appear as witness in order to bring the truth before the Court. It was further submitted that the suit was totally without any merit and was rightly dismissed. Learned counsel for respondent no.1 also contended that Exhibit-D2 did not require any registration as oral exchange is also permissive in the States of Punjab and Haryana to which learned counsel for the plaintiff-appellant replied that there is no dispute with this proposition, but in any eventuality, the exchange if reduced into writing, required registration. To support his contention, learned counsel for respondent no.1 placed reliance on Sardara Singh and another Versus Harbhajan Singh and others, 1974 P.L.J. 341 (P&H); Sona Ram and another Versus Mulakh Raj alias Lekh Raj and another, 1999(1) P.L.J. 165 (P&H), whereas learned counsel for the plaintiff-appellant relied on Shiv Ram Versus Smt.Bimla Devi, 2000(2) RCR (Civil) 471 (P&H) to advance his submission. I have thoughtfully considered the rival contentions and have perused the impugned judgments as well as the record. There is no doubt about the proposition of law that Exhibit D1 which is an unregistered document effecting exchange between defendant no.1 and defendant no.5 was rightly rejected by the Courts below being not R.S.A.No.819 of 1989 -6- .... in accordance with the provisions of the Transfer of Property Act,1882. However, to my mind, it does not enhance the case of the plaintiff-appellant in any manner for the simple reason that the sale deed in favour of the plaintiffs does not reflect the identity and dimensions of the property purchased by them. Defendant no.5 was, admittedly, owner of 3 kanals 2 marlas of land, out of which he had sold 1 kanal and 14 marlas in the year 1971 to defendant no.1. Two sale deeds were effected by him in favour of the plaintiffs and defendant nos. 2 & 3 in the years 1981 and 1983. As mentioned above, the plaintiffs are the sons of defendant no.5. A Local Commissioner was appointed in the instant case and according to his report which was accepted by the Courts below, the area in possession of defendant no.1 was found to be as follows:- East : 16 Gathas West: 17 Gathas South:16 Gathas North:22 Gathas. Whereas the area in possession of the plaintiffs was shown by the plaintiffs was shown by the Local Commissioner as under:- East : 22 Gathas West: 16 Gathas South: 10 Gathas North : 7 Gathas The area in possession of defendant no.1 has not been demonstrated to be more than what was sold to him. Therefore, the very R.S.A.No.819 of 1989 -7- .... basis of the dispute which is in the shape of encroachment of 5 marlas stood belied from this evidence. The Courts below were also right in observing that defendant no.5, who sold his property to his sons, i.e., the plaintiffs, by way of sale deeds in the years 1981 and 1983, chose not to firstly contest the encroachment which was to his knowledge since 1971 and then in the subsequent sale deeds in favour of his sons, he is mysteriously ambiguous about the identity and dimensions that could have established the parameters of the property sold to the plaintiffs. I am, thus, of the opinion, that the plaintiffs failed to establish these pure questions of fact and the question that the exchange deed was not registered and not in accordance with law, really does not arise in this case. The question of law necessarily has a strong relevance to the facts of a case. In the absence of the plaintiffs failing to show any encroachment by defendant no.1, their whole case falls flat. On the basis of the above discussion, I do not find any ground to interfere in the impugned judgments & decrees which are upheld and the appeal is dismissed being devoid of any merit. March 11,2010 ( Mahesh Grover ) “SCM” Judge