IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.123 of 1997. Reserved on: 01.07.2008. Decided on: July 07, 2008 Ram Devi & Ors. …..Appellants. VERSUS Krishnu & Ors. …..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1No For the Appellants : Mr.Rajnish K.Lall vice Mr.K.D.Sood, Advocate. For Respondent No.6 : Mr.Rajesh Mandhotra, Advocate Kuldip Singh, Judge The appellants were defendants in the suit and have filed this appeal against the judgment, decree dated 31.1.1997 passed by learned District Judge, Bilaspur in Civil Appeal No.89 of 1987 confirming the judgment, decree dated 28.8.1987 passed by learned Sub Judge 1st Class, Ghumarwin in Case No.392/1 of 1970 - 118/1 of 1987. 2. The facts, in brief, are that respondents / plaintiffs filed a suit for declaration, injunction and possession inter alia pleading that 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… sale deed dated 14.8.1967 Ext.PF executed by Govind original defendant No.1 and mutation No.470 Ext.PC on the basis of aforesaid sale are wrong and illegal. The sale deed was without consideration and the land sold through the aforesaid sale deed had already been exchanged by vendor Govind vide exchange deed Ext.PW-2/A in the year Samvat 2014 B.K. equivalent to the year 1957. The plaintiffs in view of the exchange were already in possession of the suit land. Therefore, subsequent sale dated 14.8.1967 in favour of defendants is illegal and void. 3. The plaintiffs and defendants were having their lands in village Silh and village Chellali, in exchange the land of village Silh was given to Govind and his share in village Chellali was given to plaintiffs for which mutation No.240 Ext.PD was attested in favour of Govind regarding the land situated in village Silh, but the mutation of land situated in village Challali could not be attested, however, plaintiffs remained in possession of the land situated in village Chellali which came to them in exchange from Govind. Therefore, sale of land made by Govind on 14.8.1967 situated in village Chellali in favour of Santu, Devi Dayal and defendants No.19 to 21 is illegal, wrong and not binding on plaintiffs. On these grounds, plaintiffs filed suit for declaration that plaintiffs are owners in possession by way of exchange to the extent of 1/3rd share of the suit land comprised in Khewat No.53, Khatauni No.121 Khasra No.23, 234, 248, 399, 534, …3… Khewat No.54, Khatauni No.123, Khasra No.533 as per jamabandi for the year 1965-66 and the sale deed dated 14.8.1967 is wrong and illegal and for possession of the suit land, if the plaintiffs were found dispossessed during the pendency of the suit and for injunction restraining the defendants from interfering in possession of the plaintiffs on the suit land. 4. The defendants No.3, 6, 11, 17 and 19 are the contesting defendants who have filed written statement and have taken preliminary objections of limitation, valuation. On merits, they have denied the exchange as claimed by plaintiffs. They asserted that sale deed dated 14.8.1967 is legal and they are owners in possession of the suit land. The plaintiffs filed replication and reiterated their case. Parkash and Raju, legal representatives of original defendant No.21 Sukhdev, admitted the claim of the plaintiffs, rest of the defendants remained ex-parte. 5. The learned trial Court on 28.8.1987 decreed the suit that the plaintiffs are owners in possession to the extent of 1/3rd share measuring 6-6 bighas out of land comprising in Khewat No.53, Khatauni No.121, Khasra Nos.23, 234, 248, 399, 534 and Khewat No.54 Khatauni No.123 Khasra No.533 and the sale deed dated 24.6.1967 registered on dated 14.8.1967 to the extent of 1/3rd share is illegal and void and not operative against the interest of the plaintiffs and the suit was dismissed for remaining relief. The judgment, decree …4… dated 28.8.1987 was assailed by way of Civil Appeal No.89 of 1987 which was dismissed by learned District Judge, Bilaspur on 31.1.1997, hence defendants have come in second appeal. 6. The appeal has been admitted on the following substantial questions of law:- i) Whether the Court below has misconstrued the basic document of title, the sale deed Ex.PF and the alleged exchange deed Ext.PW-2/A? ii) Whether the exchange deed Ext.PW-2/A was inadmissible for want of stamp and registration as it was in respect of property which was worth more than Rs.100 in value and could not be enforced? iii) Whether the suit of the plaintiff / respondent was not within limitation having been filed for enforcement of the alleged agreement after three years? iv) Whether the oral and documentary evidence particularly the statement of DW-1 Gokal, DW- 3 Hira Lal, Mutations Ext.PD and PC and the sale deed Ext.PF have been misread and misconstrued and have not been examined in their proper perspective? v) Whether on the facts and circumstances of the case when it was established that sale deed Ext.PF was executed for consideration and …5… conferred interest on the vendee, the same could be ignored? vi) Whether the Court below has failed to frame proper issues and the pleadings of the parties have been misconstrued making a wholly new case? vii) Whether presumption of truth attached to the documents stood discharged entitling the plaintiff to a decree for declaration and injunction? 7. I have heard Mr.Rajnish K. Lall, Advocate appearing on behalf of Mr.K.D.Sood, learned counsel for the appellants and Mr.Rajesh Mandhotra, learned counsel for respondent No.6. None appeared on behalf of the other respondents. It has been submitted on behalf of the appellants that two Courts below have misconstrued and misinterpreted sale deed Ext.PF, exchange deed Ext.PW-2/A, mutation of sale Ext.PC, mutation of exchange PD, statements of DW- 1 Gokal, DW-3 Hira Lal. The exchange was inadmissible for want of registration. The suit was not within limitation. The sale deed Ext.PF was executed for consideration and, therefore, vendees of the sale deed derive legal title. The proper issues were not framed. The pleadings have been misconstrued and a new case was made out. The presumption of truth attached to the documents stood discharged disentitling the plaintiffs to decree of declaration and injunction. The …6… learned counsel for respondent No.6 has supported the impugned judgment, decree and has submitted that no substantial question of law is involved in the appeal. The two Courts below have recorded a finding of fact that exchange took place on the basis of which plaintiffs got the suit land and, therefore, sale of the said land through sale deed dated 14.8.1967 is wrong and illegal. SUBSTANTIAL QUESTIONS OF LAW NO.(i), (iv), (v) and (vii): 8. The substantial questions of law No.(i), (iv), (v) and (vii) are interconnected and, therefore, these are being disposed of collectively. The case of the plaintiffs is that the suit land was exchanged with Govind and the parties were put in possession over their respective lands after exchange. The land of the plaintiffs situated in village Silh was given to Govind and land owned and possessed by Govind in village Chellali was given to plaintiffs and for that exchange deed Ext.PW-2/A was scribed by PW-2 Bali Ram and witnessed by PW-3 Gulaba Ram and PW-4 Kanu as attesting witnesses. The two Courts below have recorded a concurrent finding of fact that execution of exchange deed Ext.PW-2/A has been proved. This is a finding of fact and is binding on the parties, the finding of fact cannot be disturbed in second appeal unless the finding is pointed out to be perverse or finding is based upon inadmissible evidence or some important piece of evidence which goes to the root of the case has been ignored. The learned counsel appearing on behalf of the …7… appellants has failed to show that the finding of two Courts below regarding the due execution of exchange Ext.PW-2/A suffers from such infirmity. DW-1 Gokal Ram has stated that he is in possession of the suit land as he had purchased this land from Govind. He has also stated that 6 bighas of land in village Silh was given to Govind but he denied that any exchange had taken place between Govind and plaintiffs, according to him, Govind had refused to exchange the suit land. It has been submitted on behalf of the appellants that the exchange was never acted upon by Govind as he was not a party to the exchange. In these circumstances, share of Govind cannot be made subject matter of the exchange. The man may lie but not the documents. The mutation No.240 Ext.PD was attested on the basis of exchange vide which land which was given to Govind in exchange was mutated in favour of Govind in Mauza Silh. In the mutation order dated 13.12.1957 Assistant Collector 2nd Grade has noted that Govind owner to whom the land had been given has admitted that he had given land in exchange in Mauza Chellali. This is what the plaintiffs are repeatedly asserting in support of their case. In mutation No.479 Ext.PC of sale at the time of attestation of mutation the objection was raised by Blesru and Dropti on the ground that the land which was subject matter of the mutation that land was given to them by Govind in exchange. The Assistant Collector 2nd Grade at the time of attestation of the mutation No.479 has observed that the possession of …8… the land under sale is not with the vendees but with the objectors. This also supports the case of the plaintiffs that they came in possession of the suit land on the basis of exchange. This proves that the exchange was acted upon by Govind but the land which he had given to the plaintiffs in village Chellali in exchange its mutation could not be attested for one reason or the other in favour of plaintiffs. DW-1 Gokal has admitted the factum of exchange though he denied that Govind never made such exchange. The statement of DW-3 Hira Lal Patwari is not material in view of controversy between the parties nor it has been shown how statement of DW-3 has been misconstrued by the Courts below. The sale deed dated 14.8.1967 Ext.PF is not binding on the plaintiffs to the extent of share of Govind inasmuch as once Govind has exchanged his share with plaintiffs, thereafter, he could not sell his share by way of sale deed Ext.PF. The two Courts below on the basis of material on record have rightly held that Govind had earlier exchanged the land with plaintiffs, therefore, he could not sell same land by way of sale deed Ext.PF. The learned counsel for the plaintiffs has failed to point out any legal defect in the conclusion drawn by the two Courts below. The substantial questions of law No.(i), (iv), (v) and (vii) are thus decided against the appellants. SUBSTANTIAL QUESTION OF LAW NO.(ii): 9. There is nothing on record that at the time of exchange the value of the land under exchange was Rs.100 or more, there is no …9… issue to this effect. In the written statement no plea has been taken that value of the land under exchange at the relevant time was more than Rs.100 and, therefore, exchange Ext.PW-2/A is not admissible. Therefore, the appellants in second appeal cannot be permitted to take such objection. Hence, substantial question of law No.(ii) is decided against the appellants. SUBSTANTIAL QUESTION OF LAW NO.(iii): 10. The suit has been filed by the appellants on the basis of title which they claimed on the basis of exchange. There is no plea of adverse possession in the written statement. The plaintiffs in their suit have pleaded cause of action on 14.8.1967 when the sale deed was executed. The suit was filed on 18.12.1970. The suit is based upon title, hence, it is very much within limitation. The substantial question of law No.(iii) is decided against the appellants. SUBSTANTIAL QUESTION OF LAW NO.(vi): 11. The parties knowing fully well the case of the opposite side contested the suit and led evidence. At the time of hearing of the appeal it has not been specifically pointed out what issue was left which was not framed, nor it has been pointed out that by not framing such issue what prejudice has been caused to appellants. In the second appeal the appellants cannot be permitted to take vague point of non framing of issue. Therefore, substantial question of law No.(vi) is decided against the appellants. …10… 12. The two Courts below have concurrently recorded a finding that plaintiffs got the suit land on the basis of exchange and the sale deed dated 14.8.1967 Ext.PF is not binding on them. The learned counsel for the appellants has failed to show any legal infirmity in the impugned judgment, decree. The appeal is accordingly liable to be dismissed. 13. No other point was urged. 14. The result of the above discussion, the appeal is dismissed with no order as to costs. July 07, 2008 ( Kuldip Singh ) (soni) Judge