Regular Second Appeal No.1274 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1274 of 2008 Date of Decision: August 11,, 2009 Smt. Bugli and others ...........Appellants Versus Arjun and others ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Vikram Singh,Advocate for the Appellants. ** Sabina, J. Plaintiffs have filed a suit for declaration with consequential relief of permanent injunction. The Additional Civil Judge (Senior Division) Panipat dismissed the suit of the plaintiffs vide judgment and decree dated 8.5.2007. Aggrieved by the same, plaintiffs preferred an appeal and vide judgment and decree dated 16.11.2007, the learned Additional District Judge, (Fast Track Court) Panipat also dismissed the appeal of the plaintiffs. Hence, the present appeal. The case of the parties, as noticed by the learned District Judge in paras 2 and 3 of its judgment reads as under:- 2. Brief facts of the case of plaintiffs are that they, their mother Smt. Manno and their five brothers Julfi, Ram Bhaj, Phool Singh, Pawana, Bhanwar Singh were owners to the extent of ½ share in the suit land, the details of which have been mentioned in the headnote of the plaint. In September, 1998, they were taken Regular Second Appeal No.1274 of 2008 2 aback by the surprise to know that defendant No.1 along with Smt.Bhagirathi d/o Chandan had got executed and registered an exchange-deed dated 16.9.1974. It is this exchange-deed and the consequent judgment and decree dated 29.3.1996 passed on the basis of the said exchange-deed that have been challenged by plaintiffs as illegal, null and void on the ground that they never exchanged their lands with defendant No.1 and Bhagirathi, they and their mother Smt. Manno were not present in Tehsil premises on 16.9.1974, they did not put their thumb impressions over the alleged exchange-deed. Nor they appeared before the Sub Registrar, Panipat. No summons or information etc. were given to them qua the said exchange-deed. There was no pre-existing right in favour of Ram Bhaj and Premo etc. The property in dispute, otherwise also valued several lacs and registration was necessary. As soon as they came to know of the alleged exchange-deed, they demanded their respective shares from their brothers namely Julfi, Ram Bhaj, Bhanwar Singh and Phool Singh etc. for the crops, but they flatly refused intimating them that their shares in the land had already been exchanged long ago in the year 1974. When this fact came to their notice in September, 1998, they approached defendants to admit their valid claim and also requested revenue officials to correct illegal revenue entries, but no heed was paid to this request. Left with no alternative, plaintiffs knocked the doors of the civil court by way of filing the present suit praying therein that they be declared as owners to the extent of 5K-11M out of the suit land, the details of which have been mentioned in the head Regular Second Appeal No.1274 of 2008 3 note of the plaint. It has been prayed that exchange-deed executed and registered on 16.9.1974 be declared illegal, null and void and consequent judgment and decree dated 29.3.1996 passed in civil suit no.820/95 titled as Ram Bhaj vs. Arjun be also declared illegal, null and void and defendants be restrained from alienating or transferring the suit land in any manner. It was further prayed that a decree for separate possession/joint possession being owners to the extent of their respective shares be also passed 3. Notice of the suit was given to the defendants. The defendants appeared and filed written statement taking preliminary objections regarding maintainability, cause of action, locus standi, estoppel, misjoinder and non-joinder of necessary parties and suppression of material facts etc. On merits, the defendants denied the allegations levelled by the plaintiffs and maintained that plaintiffs along with their five brothers and mothers got their respective shares in agricultural land exchanged vide registered deed of exchange bearing Vasika no.1921 dated 16.9,1974. All the persons in presence of each other put their thumb impressions on the said deed of exchange. The plaintiffs appeared before the Sub Registrar where they were identified by their brothers. Sub Registrar also made relevant inquiries about the identity of the parties to the said exchange-deed. Since the day of exchange, plaintiffs were in possession of the land, which was earlier owned by Arjun and Bhagirthi and consequently, they (plaintiffs), their brothers and mother delivered possession of the agricultural land Regular Second Appeal No.1274 of 2008 4 earlier owned by them to Arjun and Bhagirathi (the second party to the said exchange-deed). The exchange had been incorporated in the revenue record as mutation was sanctioned on the basis of aforesaid exchange deed. It was further averred that Arjun and Bhagirthi made all possible enquiries to satisfy themselves about the identity of the parties to the exchange-deed, thus, they being bonafide transferees by way of registered exchange-deed were entitled to the protection of law. Exchange-deed dated 16.9.1974 being valid document and consequent judgment and decree dated 29.3.1996 passed on the basis of the same was also valid, legal and operative upon the rights of the plaintiffs. All other averments of the plaint were also controverted and the dismissal of the suit of plaintiffs was prayed for. On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiffs are owners in possession to the extent of 1/2share of the agricultural land, as detailed in the headnote of the plaint, as alleged ? OPP 2. Whether the plaintiffs are entitled for the relief of permanent injunction, as prayed for?OPP 3. Whether the plaintiffs are entitled for the relief of separate possession and joint possession being owners in respect of the land to the extent of half share of the plaintiffs, as alleged?OPP 4. Whether the exchange deed executed and registered on 16.9.1974 is illegal void and is result of fraud and misrepresentation,as alleged?OPP Regular Second Appeal No.1274 of 2008 5 5. Whether the subsequent judgment and decree in civil suit no.820/95 decided on 19.3.1996 titled as Ram Dhan vs. Arjun, are illegal, void and not binding upon the plaintiffs, as alleged?OPP 6. Whether the plaintiffs are entitled for the relief of permanent injunction, as prayed for?OPP 7. Whether the suit of plaintiffs is barred by limitation?OPD 8. Whether the suit is bad for mis-joinder and non-joiner of necessary parties?OPD 9. Whether the plaintiffs have no locus standi to file the present suit?OPD 10. Whether the suit of the plaintiffs is not maintainable in the present form?OPD 11. Whether the plaintiffs have concealed the true and material facts from the court?OPD 12. Whether the plaintiffs are estopped by their own act and conduct to file the present suit?OPD 13. Whether the plaintiffs have no cause of action to file the present suit?OPD 14.Whether the defendants are in actual cultivating possession of the suit land enjoying ownership, as alleged?OPD 15. Whether the plaintiffs have not fixed the advalorem court fee and the suit is liable to be dismissed,as alleged?OPD 16. Relief" After hearing the learned counsel for the appellant, I am of the opinion that this appeal deserves to be dismissed. Plaintiffs filed a suit for declaration to the effect that they Regular Second Appeal No.1274 of 2008 6 were owners to the extent of 5 kanals 11 marlas out of 30 kanals 11 marlas of the land in dispute and the exchange deed executed and registered on 16.9.1974 was illegal, void and was result of fraud and misrepresentation and subsequent judgment and decree in civil suit No.820 of 1995 decided on 29.3.1996 were also illegal and not binding on the plaintiffs. The case of the plaintiffs is that they had never appeared before the Sub Registrar, Panipat at the time of registration of exchange deed dated 16.9.1974. In fact, some other persons had been produced before the Sub Registrar. The said contention of the plaintiffs was denied by the defendants. Learned trial Court in its judgment has observed that Kamla Devi one of the plaintiffs, who had appeared in the witness box as PW3, admitted that the present suit filed by her only at the instance of her brother who had collected relevant papers/documents etc. The other two plaintiffs did not appear in the witness box to substantiate the allegations of fraud levelled by them in the plaint. Brothers and mother of the plaintiffs, who were also party to the exchange deed did not challenge the same. Thus, it is evident that the plaintiffs at the instance of their brother had challenged the exchange deed dated 16.91974 by filing the present suit on 9.11.1998. Mutaion No.995 (Exhibit P3) was sanctioned on 24.2.1975 on the basis of exchange deed and,thereafter, the factum of exchange deed was incorporated in subsequent jamabandies. The handwriting expert examined by the plaintiffs also deposed that since all the thumb impressions were not mentioned at the first and second page of the document, he was unable to give an opinion whether they related to that of the lady who had given specimen thumb impressions or not. In these circumstances, the finding of fact recorded by the Courts below that the plaintiffs had failed to establish Regular Second Appeal No.1274 of 2008 7 that the exchange deed was result of fraud or misrepresentation calls for no interference by this Court. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge August 11, 2009 arya