Regular Second Appeal No. 825 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 825 of 2009 Date of decision : July 26, 2010 Milawa Ram and another ....Appellants versus Mohd. Ali and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Sachin Mittal, Advocate, for the appellants Mr. VK Bali, Advocate, for respondent nos. 1 to 4 L.N. Mittal, J. (Oral) By this common order, I am disposing of two appeals i.e. RSA No. 825 of 2009, titled Milawa Ram and another versus Mohd. Ali and others, (preferred by plaintiffs No. 5 and 12) and RSA No. 484 of 2009, titled as Mohd. Ali and others versus Smt. Ram Piyari and others, (preferred by the defendants) as both these appeals have arisen out of a single suit. Suit was filed by appellants and proforma respondents no. 5 to 23 (some of whom are legal representatives of some of the deceased plaintiffs) against respondent nos. 1 to 4 who are sons of Rahim Khan alias Rahim Bux. The plaintiffs' case is that they were owners of 27 kanals 8 marlas land described in para no. 2 of the plaint (for convenience referred to as plaintiffs' land) whereas defendants' father Rahim Khan was owner of 26 kanals 12 marlas land described in para no. 3 of the plaint (for convenience Regular Second Appeal No. 825 of 2009 -2- referred to as defendants' land). There was oral exchange between the parties about 20 years before the filing of the suit and possession was also exchanged. However, in the revenue record, plaintiffs continued to be recorded as owners of plaintiffs' land which is, however, recorded in possession of defendants' father on account of exchange. Similarly defendants' father is recorded to be owner of the defendants' land which is, however, recorded in possession of the plaintiffs on account of exchange. The defendants, however, started disputing the exchange. Accordingly, the plaintiffs sought declaration that they are owners in possession of the land mentioned in para no. 3 of the plaint (defendants' land) whereas defendants are owners in possession of the land mentioned in para no. 2 of the plaint (plaintiffs' land). In the alternative, the plaintiffs prayed that if the oral exchange is not proved, then possession of the land mentioned in para no. 2 of the plaint (plaintiffs' land) be granted to them. Defendants denied the alleged exchange. Defendants pleaded that they are in possession of the plaintiffs' land as Gair-Marusi on payment of 1/3rd batai as rent. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Mobile Court at Punhana vide judgment and decree dated 10.4.2008 dismissed the suit holding that the alleged exchange was not proved. First appeal preferred by some of the plaintiffs has been dismissed by learned Additional District Judge, Nuh vide judgment and decree dated 23.9.2008. However, learned lower appellate court held that there was exchange of possessory rights between the parties but there was no exchange of ownership. Plea of the defendants that they are tenant on the plaintiffs' land was also negatived. Regular Second Appeal No. 825 of 2009 -3- Aggrieved by the said finding of the lower appellate court, defendants have preferred RSA No. 484 of 2009. Aggrieved by the dismissal of their suit by the courts below, plaintiffs no. 5 and 12 have preferred RSA No. 825 of 2009. I have heard learned counsel for the parties and perused the case file. Perusal of the revenue record produced in the evidence reveals that plaintiffs are recorded to be owners of plaintiffs' land and defendants' father Rahim Khan is recorded to be in possession thereof on account of exchange. Similarly defendants' father Rahim Khan is recorded to be owner of the defendants' land and plaintiffs are recorded to be in possession thereof on account of exchange. However, subsequent to the alleged exchange, plaintiffs mortgaged part of their land with Land Mortgage Bank. The mortgage was perhaps redeemed subsequently. Plaintiffs also sold some part of their land subsequent to the alleged exchange. In view of said transactions, the courts below rightly held that there was no exchange of title or ownership of the lands of each other. Learned counsel for the plaintiffs contended that if there was no exchange of ownership or title, the plaintiffs are entitled to relief of possession of the plaintiffs' land as defendants are in possession thereof on account of alleged exchange. On the other hand, learned counsel for the defendants contended that according to the plaintiffs' version, the alleged exchange took place about 20 years before the filing of the suit. The suit was filed in September, 1999 and therefore, alleged exchange took place in the year 1979. It was contended that defendants' father is recorded to be in Regular Second Appeal No. 825 of 2009 -4- possession of the plaintiffs' land even in the year 1968-69 vide jamabandi Ex. P5 and therefore, defendants' father was in possession of the plaintiffs' land as tenant and not on account of exchange. I have carefully considered the rival contentions. Following substantial questions of law arise for determination in the instant second appeals:- “1. Whether the courts below committed illegality in not granting relief of possession to the plaintiffs regarding plaintiffs' land mentioned in para 2 of the plaint even after holding that the alleged exchange had not taken place ? 2. Whether learned lower appellate court committed illegality in holding that defendants were not proved to be tenants over the plaintiffs' land ?” Second question of law framed herein above has to be answered first because answer to the first question would depend on answer to second question. As noticed herein above, alleged exchange has been held to be not proved by the courts below. The said finding has to be upheld because the plaintiffs even after the alleged exchange had mortgaged and sold part of the plaintiffs' land mentioned in para 2 of the plaint. Consequently, there was no exchange of ownership or title of the lands between the parties. However, consistent revenue entries for 30 years before the filing of the suit reveal that plaintiffs were not in possession of the defendants' land on account of exchange and similarly defendants (including their father) were in possession of the plaintiffs' land on account of exchange. Thus, there was exchange of possession between the parties and plaintiffs' possession Regular Second Appeal No. 825 of 2009 -5- over the land of defendants was on account of exchange and similarly possession of defendants over the plaintiffs' land was also on account of exchange. There is not even shred of evidence except oral evidence to depict that defendants or their father ever remained in possession of plaintiffs' land as tenant. There is not even single entry in revenue record spreading over 30 years before the filing of the suit to depict that defendants or their father ever came in possession of the plaintiffs' land as tenant. On the other hand, their possession over the suit land was only on account of exchange. As regards oral evidence, there is only self serving oral statement of defendant no. 1 that they had been cultivating the plaintiffs' land as Gair-Marusi on payment of 1/3rd batai. However, there is no material on record to substantiate the said oral statement of defendant no. 1. There is nothing on record to depict that the defendants or their father ever paid any batai to the plaintiffs. In fact, there is no material on record to depict that the defendants or their father ever came in possession of plaintiffs' land as tenant. The documentary evidence reveals that possession of the defendants' father and later on of the defendants over the plaintiffs' land was on account of exchange and not as tenant. Consequently, there is no illegality in the finding of the lower appellate court that plea of the defendants that their possession over the plaintiffs' land was as tenant is not proved. The said finding is accordingly affirmed and substantial question of law no. 2 as framed herein above is accordingly answered against the defendants. Now coming to substantial question of law no. 1 framed herein above. Nothing remains to be answered under it as the same has to go in Regular Second Appeal No. 825 of 2009 -6- favour of the plaintiffs. As noticed hereinabove, exchange of the ownership of the lands is not proved. Consequently, the plaintiffs continue to be owners of the land mentioned in para no. 2 of the plaint. Defendants continue to be owners of the land mentioned in para no. 3 of the plaint. Since plaintiffs are owners of the land mentioned in para no. 2 of the plaint, they are entitled to possession thereof as sought by them. On the same analogy, defendants are entitled to possession of the land mentioned in para no. 3 of the plaint although defendants have not made any counter claim for the same. Substantial question of law no. 1 framed above is answered in favour of the plaintiffs holding that they are entitled to relief of possession of the land mentioned in para no. 2 of the plaint and the courts below committed grave illegality in not granting said relief to the plaintiffs. For the reasons recorded herein above, RSA No. 484 of 2009 preferred by defendants is dismissed whereas RSA No. 825 of 2009 preferred by plaintiffs no. 5 and 12 is allowed. Judgments and decrees of the courts below are set aside. Plaintiffs' suit is decreed for possession of the land mentioned in para no. 2 of the plaint. At the same time, the plaintiffs shall surrender possession of the land mentioned in para no.3 of the plaint (if plaintiffs are in possession thereof) in favour of the defendants. Parties are left to suffer their own costs throughout. ( L.N. Mittal ) July 26, 2010 Judge 'dalbir'